AILA Conference 2020 Day 1 Session 4: Public Charge Rule

2020 AILA Conference: Day 1, Session 4: Public Charge Rule

Categories: Resources
Published: July 24, 2020

Tags: AILA

2020 AILA Conference Public Charge Video Summary:

In this video, Attorney Joseph Tsang gives an overview of the 4th session on Day 1 of the 2020 AILA conference. He discusses how the changes to the public charge rule make it significantly harder for I-601A applicants because it gives the “Poverty Police” more power in determining who is “rich enough” to live in the USA. 

Learn more by watching the full video.

Full Video Transcript

[Tsang logo splash]
Hi. Welcome to Tsang & Associates. It’s an exciting week. It’s AILA’s 2020 virtual conference.
I’m gonna do a review for each session, well not every session, but the sessions that I’m attending and we’re gonna be sharing it with you now. If you’re not familiar with AILA, it’s American Immigration Lawyer Association. It’s the largest immigration lawyer association in the United States & probably in the world.
Each year thousands of attorneys around the world will be gathering to discuss the pressing immigration issues of the day, discussing strategies and tips, and AILA will be inviting the top immigration lawyers on these subject matters to present their findings.
Now before we get started a quick disclaimer: the opinions expressed in this video are solely mine. Even though I am an AILA member, my opinions do not represent the opinions of AILA organization, nor even the opinions of the speakers themselves. You can download the original video and presentation from AILA University so you can fact check everything I’m saying.
My goal is to present a short-condensed summary of the presentations that I witnessed and also express some kind of my opinion.
If you like this kind of video, please subscribe, follow, and you can also look to AILA University. They provide awesome content.
[1:11] Day one Session Four: Public Charge or Poverty Police. So just like the Love Police we dealt with in a prior video, now we have to deal with the poverty police.
USCIS is adjudicating whether or not you are rich enough to get a green card to be in the US Now this rule isn’t new. It’s been around for decades and it makes good public policy sense. You don’t want people coming into the country from all over the world, taking the benefits that need to go to more vulnerable US citizens and local vulnerable residents, right? Well, the new thing about this particular rule is they made it so much harder and with an elite team of immigration attorneys over here [Charles Wheelter, Jason C. Mills, & Fuji Whittenburg], they are presenting some really valuable updates on this particular issue and how to address them.
[1:52] Before we dive into the changes, a quick refresh on what it was before, right? So there is a rule in place before which was already protecting America from thieves coming to the country and stealing all the benefits. Basically, you need a sponsor so that if you fall in debt while the sponsor who’s sponsoring you will pay for it, and two, you have to prove that you have above 125% of the poverty guideline. If the poverty guideline is $30,000, well, you need closer to like $35,000 to qualify.
[2:21] The best analogy is like a landlord. When you are trying to rent from somewhere, you need a sponsor if you don’t make enough money and when the sponsor looks at you, they’ll check your credit, and they’ll check if your sponsor has enough money to support you to pay for rent. If you don’t qualify, well, they’re not charity. They don’t have to give you a place. They’re not discriminating against you for your race, your gender. They’re just doing business sense. Same thing with the poverty guideline. Same thing with the public charge rule. Same thing with this new regulation, except before it was a bright line test. 125% above poverty guideline, you get a sponsor, that’s it. We’re not really looking into anything else.
[2:59] Now, the new change, they upped it from 125% to approximately 250% and made it into a factor test. It’s no longer a bright line. Even if you pass that, they can still deny the application because they look at a whole host of other things. Whether this is a good idea or a bad idea, we’re not here to talk about that. You let us know in your comments below if you think this is a good idea or a bad idea from a public policy standpoint, right?
[3:25] But the main point is that they’re now looking at a whole host of factors that you might fall into, and if you fall into those, how are you going to deal with it. But before getting into technical aspect of different factors, really sit back and understand who are the people applying. Maybe it’s your father petitioning your grandmother coming over and they’ve already waited for five years, ten years for this process. Or it’s a company hiring this foreign worker for the very first time and now after five years of waiting they’re finally able to come and start their new job. Or somebody who won the diversity visa and you know they’re from a country that generally doesn’t… is not represented in the US and they’re coming from a third-world country, there’s all these different peoples from all over the world. They’re not just the most excellent, the richest, the smartest, the famous. It’s all people from all walks of life. People from every country in the world. Think about how this public charge will affect them, and think about how all these factors make it so difficult to really prove whether or not they’re rich enough to live in the US.
[4:23] Alright, factor number one: your age.
Before it really wasn’t a factor. As long as your sponsor is able to guarantee that they will pay for your livelihood, then it doesn’t matter. But now, they will look at your age. If your age is under 18 or over 61, there is a high chance that your case will be scrutinized. Why?
Well, because if you’re under 18, you can’t work. You can’t support yourself. You’re going to college. You’re basically still a burden to society.
If you’re over 61, you have health risks. Your chances of using medical medicaid, the chances of you already retiring, you don’t have any government benefits, it’s quite high, so you’re not contributing to society. Again, you’re a burden to society. If you’re a burden to society, then we really want to examine your case to see if you are going to be a public charge, if you are too poor.
[5:07] So what do you do? If you’re under 18, then you’re really going to rely on your sponsor, and your parents, and your own ability. If you can show, “Look. I’m an outstanding student. I’m getting into a top university. I’m going to get these loans. I’m going to get a good job. I’m going to get a good internship and I’m going to be able to pay off debt and I’m going to be an outstanding individual in the society.” Then you’re pretty good. But if you’re a failing student, if your parents are poor, if your sponsor is poor and you’re going to go work a very low minimum wage job, and you have health problems, then that’s going to be a problem.
And if you’re over 61, then you really want to show what your retirement plan is. What is your 401k? What is your Social Security? Do you have a health insurance? Do you have a life insurance? Is it term life insurance or is it universal life? You really want to have your retirement in place to show the officer, “Hey, look. This is how I’m gonna make $3,000-$5000 in passive income so that i can live off of it and I will not be a debt to society. I have my house paid for and my car is paid for. I live a very frugal life and this is enough and I have all these savings.” That is going to be crucial.
[6:06] What wasn’t mentioned is also trusts, right? If you guys don’t know, if you have a trust, if you’re a beneficiary of a trust, somebody else is passively giving you money because they’re managing it for you. Now, it could be an irrevocable trust or a revocable trust, but the point is, you have to be a beneficiary and you have to be receiving this fund. You have to think about it in the terms of a mortgage officer. When you’re applying for a green card now, you are essentially preparing a mortgage application so the government is “lending you money” so that you have to prove that you’re credit worthy.
And trusts can play a huge role if you have a weak case. Maybe you don’t have the income. Well, if we can create a trust to show that there are other people who are committed to providing you money, then that could be a source of income, just like any mortgage application.
[6:52] The second factor is your health.
Now, they primarily rely on your medical report, and they’re not doctors, these “poverty officers,” so they’re not gonna scrutinize your health report. But if they see something in the health report that they don’t quite understand, like for example, you have a problem coughing, if you have a particular illness, if you have a hereditary disease of some sort, they don’t know what it is. They’re not doctors, but they have the authority to challenge you and explain “Hey, do these ailments prevent you from working? Do these ailments prevent you from getting a job so you can support yourself? Are you going to be a destitute on society? Are you going to be a public charge based on these ailments?” So they have the authority to challenge you.
And based on these health reports, you need to prepare a solid case explaining why you will be okay and able to work. Maybe you’ve previously worked other jobs despite having these ailments. If you can’t walk, well, maybe you can be a translator. You see what I’m saying? So there’s all these different ways to prove that you can still be a productive member of society and you have… well, you will have a source of income.
[7:52] The third factor: household size.
Now this is super interesting. The speakers went in depth and really discuss it and brainstorm. If you live in a household or if you’re going to live in a household with a lot of different people, and everybody is working, and everybody’s filing tax returns, well, then you’re probably okay. But if you are going to immigrate to the US and you’re going to be a part of household where a lot of people are not working, you know, only one person is working and supporting everyone, then you really need to get creative.
Maybe get some of these people to move out so they’re not part of the household so the income is more easy to meet the 250% poverty guideline, or find a new household to immigrate into, right? There’s a lot of thoughts and maneuvers, but basically, you really want to prove that “Hey look. My situation is great and there’s going to be enough money to go around. And this is the family. This is my environment. This is my friends. This is my network that I’m getting myself into. And I will definitely not be a burden on society.”
You don’t want to jump in, and suddenly, everybody around you has filed bankruptcies. Everybody is living off the government. That won’t look good.
[8:55] The fourth factor is your income.
We already talked about moving from the 125% to the 250%. We already talked about Trust and Irrevocable Trust. But now, let’s talk a little bit more about this, right? So this is not a bright line test. It’s by no means that you have to meet this 250% guideline, but the more, the better. And passive income plays a key part into this.
[9:17] In the past, you can prove your assets if you have enough assets; five times the amount of the poverty guideline, then you can use that to prove it. But what’s the philosophy behind using your assets? The idea is if you have all this asset, you can invest it and these assets will generate passive income. That’s the idea, right? So directly get into that.
Maybe you have a particular partnership. Maybe you bought a property with your friend and you have a partnership agreement and that has rental income and that will be able to fund you. You don’t have to work, but you have multiple real estate listings and maybe each one isn’t even worth that much, but they all bring in passive income.
A prime example of this is, maybe, you know somebody who has 16 units apartment that’s for rent, and it’s owned by an LLC and you can partner with them. Either buying out a couple units or investing your time, and energy, and effort and making it a lot better; marketing it; designing it; improving the lifestyle of the tenants. You’re a lifestyle director somehow. And then you will be able to take a share of all the rental income and that rental income will satisfy the 250% poverty guideline, right?
[10:23] So there’s different creative ways in which you can generate passive income so that you can show that you will not be a burden on society. it’s not really like a traditional job where you get a W-2 or a 1099 and then you have to pay taxes on it. It’s rental income; it’s passive income. Maybe you have a certain amount of funds, and you’re really good at stocks, and you’re investing left and right, and you have this passive income flow because you have a really nice dividend portfolio. Well, that can also work as well, right? Maybe you have multiple different Robinhood accounts and Chase investment account and you have a Charles Schwab account; different accounts that’s investing in different things. And you have a financial planner that lays out everything for you. Well that could work as well. So that’s the idea between the poverty guide. Before, 125% is relatively easy to meet. Now, 250% is a little bit harder, but still very, very much doable.
[11:10] Factor 5 and Factor 6 is very interrelated. it’s language and special skills.
The idea is, you’re immigrating to this particular country. How are you going to work? If you can’t speak english? If you haven’t graduated high school? If you have no marketable skill? If people look at your resume and they’re like, “There’s no way you’re going to get a job…” or they interview you, and you definitely are not a people person, then it calls into question your ability to land a job. If you cannot convince the officer that they would want to hire you, how are you going to convince any employer that they will want to hire you?
So you really need to be able to explain, despite your language ability, just by your lack of education and marketable skills, you will not be a burden… this is why, right? And so we talked about the passive income strategy earlier, if you have absolutely no way of getting a job, but conversely, if you have a marketable skill and you’re poor and in every other respects, maybe you don’t have a dollar to your name, an acre of land, a trip to command, a dollop of fame. Maybe, all you have is honor, a tolerance for pain, a couple of college credits, and your top notch brain, and that would be good enough. It was good enough for Hamilton. Surely, it could be good enough for you.
And the key idea is value and this is what i tell my clients who are facing the public charge rule: What value are you generating? All of these factors is really assessing what value you will be able to generate. Directly, they are saying what income you have, but income is tied to value. What value do you have to society? To people? Maybe you’re old, and you do not have anything to contribute to society.
Well, there’s that book, “A Man Called Otto.” One of my favorite books of all time. And this guy is able to help an entire community get back on its feet. Maybe you contribute that kind of value to your community and your community can come back and attest that for you and on your behalf. Maybe you’re young, and you don’t have a glamorous degree, and you don’t have a bright future according to what society deems worthy, but you are an influencer, and the post that you have has hundreds of thousands of likes and reviews, then you can potentially be a star. You really have to think outside of the box. What value do you contribute? And that should be the star argument that you employ to prove that you will not be a public charge.
[13:26] Alright. The next thing is immigration bonds.
Now this is actually super interesting because there’s so much new information about this and it’s such a shifting topic. But basically what I got out of it is, if you are applying for an immigrant visa overseas, getting an immigration bond will not really help you. And i’m not really sure why… Is it because they’re going to deny our case anyway, so they’re not going to take into consideration? Or, is it because it’s so easy out there, they’re not as restricted on public charge rule, so you don’t have to apply for an immigration bond… not quite sure… but the point is immigration bonds won’t help outside [of the US] as of now.
Now, where the immigration bond is going to apply is in the US. If you are subject to the public charge where you might be too poor to be in the country, then just buy a bond. Pay some money… if you default, then the bond company will be able to give the government the money and everybody’s happy. It’s a private enterprise. The government gets some money. It’s a win-win situation, and if you can’t prove your case, then you just buy a bond.
Still really unclear on how that’s going to work… Will the government still deny you if you don’t buy enough bond? What if it’s a bond agency that has a bad rating? It’s all very confusing, but use it as a supporting documentation. Still do your best in preparing the best case possible, and if the government still doesn’t think it’s enough to challenge you, well, you can lean back on a bond. That’s the kind of takeaway.
[14:42] Alright. The next topic is how the public charge affects 601A applications. Now, this is actually super important because it changes the entire game. 601A applications are basically people who have been in the US, they have been living here in the shadows, and finally they prove that because their departure will cause extreme hardship on a US citizen or an important US relative that they deserve a green card and they can wave their unlawful presence here. Now so it’s kind of a waiver. Traditionally, once you get that waiver then they can go out of the country, get the immigrant visa, and come back in. Unfortunately, a lot of these people have been living in the shadows for many, many years. Many of them don’t have official jobs, or they’re very, very low income so by their very nature, people who are applying for 601A waivers are not wealthy, and if they are not wealthy, then they are subject to the public charge rule.
[15:37] And here’s the key takeaway: if your case gets denied overseas because the consulate overseas does not think you are rich enough; they think you are likely to be a public charge, there is no appeal. This is huge! A lot of my 601A clients, they’ve been here for years and years and years, and they finally put together an application. They file it and they finally got it approved. You know, other applications get denied. They’re one of the few that gets approved. They’re super happy. They work super hard, but now they have to face this additional fear, “hey if I go out of the country, I’m not the richest person. If I get denied then all of this was in vain. My years of hard work, this entire application process, even this small victory of winning the approval that was already super hard, I can still be denied because of the public charge rule.” So this is the huge warning to everybody who is applying for 601: Do not rejoice too early. Even if you get the approval, you have to doubly work down hard on your public charge application so that when you do apply, the consulate you will be able to get approved and you have to make sure the two doesn’t contradict, right? Because the consulate will also get a copy of your 601, so if you’re in their 601 application, you’re saying “hey, we are super poor. If you separate us, then she’s going to be super poor. He’s going to be extra poor (the US citizen) so therefore we need to be together.” Well, that’s not the best argumentation that you would want to show when you’re applying for the consulate because like “hey, you already admitted you’re super poor” then “I’m not gonna approve your case.”
[17:07] After watching the presentation, my key takeaway is this is still a very new and evolving area of law. It’s the newest and it has the potential to bar the most amount of people from entering the country and getting their green cards. It made the original requirement, two times, three times, four times as hard. They made an original, very clear brightline test to a very discretionary one, so any officer that has a prejudice against your case, now has a legitimate reason to make your life a lot harder. And it’s subject to a lot of litigation. Did making this change make the country a better place? Prevent fraud? Prevent people from abusing the government? I don’t really know, right? I think it’s still debatable and it’s still being examined, but it’s definitely ripe for a lot of abuse.
So the key takeaway is: be vigilant. Watch and if there’s any injustice that happens, don’t be afraid to step out, be bold, and sue the government, and sue USCIS, and file motion to reopen because it’s not fair. Present all the documentation. Show that you are not too poor, that you will not rely on the government, that you yourself are self-sufficient, that you are trying to reach “The American Dream”, and that you will make America a better place.
[18:20] When I told this to my client, like a week ago, the client basically says “oh okay, I get it. This is really testing me to see if I’m really, like, an American; If I’m gonna fight for my rights, right? This is just like a test.” And I said “No, it’s really not that, but sure, you can think of it that way.” Fight for your rights! And, I know in other countries you might not have that privilege. You might not even think that that’s possible. But here in this country, we are a nation of laws and the law protects you. And if you have an argument to make, you definitely can make it. And this is your first step to be an American. Prove your case. Are you going to make America great?
[18:55] If you’ve never been to AILA’s national conference before, after each session, typically all the attorneys will get together and ask the speaker questions. They will ask each other questions. They’ll discuss the issue at hand. It’s a super fun time, networking event before the next session starts. Now, since we’re not at the conference, but I’m pretty much treating as if I’m at the conference for the next four days, if you have any ideas or suggestions, please leave a comment below, or email us, or call us. Just let us know your thoughts and we’ll be happy to engage with you.
[19:22] Again, a huge shout out to AILA University for putting together this conference on such a short notice, especially given the pandemic, as well as all the speakers that carved out their time and prepared this presentation to help educate the rest of the AILA community on these important topics. I know I personally gain a lot from it and I go every single year. Now for the viewers, if you like this video or interested in more videos like this, please subscribe, leave a comment, let us know what other things that you want to see, we’ll be happy to create more videos that are like this.
Have a great rest of the conference. Take care. Bye-bye.