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How does the U.S. change on public charge affect my EB-5 application?

The government is redefining the "public charge" rule and denying green cards and citizenship. I am in the U.S. and have bought insurance through Obamacare for me, my wife and our son, who is a college student. Will our I-829 application be affected by using the Obamacare program and earned income tax credit? How can we avoid being considered under the public charge changes?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    These regulations are still not finalized. There are a lot of grey areas, but it is unlikely that purchasing the marketplace insurance would subject a person to a public charge finding.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The test used to examine a range of factors to determine whether an immigrant is likely to become a public charge. The new rule will change the meaning of the term public charge, redefine and expand the types of benefits considered in public charge determinations, and outline new processes for conducting what is called the “totality of circumstances” test. DHS now proposes to review the previous 36 months of benefit use. This look-back period is markedly different from current public charge determinations, which are exclusively prospective. In the new rule, DHS put forward that it will continue making public charge inadmissibility determinations within the context of the overall situation of the immigrant, referred to as the “totality of circumstances” test. The test includes consideration of: age, health, family status, assets, resources, financial status, education, skills and a required affidavit of support from a sponsor. Your purchase of insurance through Obamacare for you, your wife and your son, who is a college student, should not on its own result in a determination that you are a public charge. You need to present evidence in the above categories to show how you will not be a burden on the state.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    Buying any kind of insurance will not affect your EB-5 petition or green cards.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Hard to know until it is implemented. But unlikely to expect those who are not accepting public benefits.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The proposed rules on the issue of public charge are still going through rule-making process, meaning they are not final. However, a good scan of the rules does not indicate that the "purchase of insurance coverage through Obamacare" is considered a public charge. Also, neither using the insurance coverage nor application for earned income tax credit is not "a public charge" and should not negatively affect an I-829 application. Advisably, consult an immigration attorney for further analysis.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    To the best of my knowledge, Obamacare and earned income tax credit do not fall under "public charge" since that would entail a "means-tested public benefits" being received that would indicate that the alien would not be able to financially support themselves. If you are processing under an EB-5 investor, your ability to financially support yourself would not be something that needs to be an issue.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Right now, the changes are not settled, and the Affordable Care Act is the biggest question. I hope more clarification will come.

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    Charles Foster

    Immigration Attorney
    Answered on

    If you purchased insurance through Obamacare, it should not subject you to the "public charge" ground of exclusion, which would make you ineligible for lawful permanent residency. The fact that you have already acquired your permanent residency on a conditional basis would make it even less a possibility.

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