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My girl friend gave birth in the USA three years ago and used Medicaid. She went back home with baby and got denied a visa for reentry to the US because of that Medicaid use. Now as a permanent resident, if I petition for her, will that Medicaid use affect the immigrant visa process?

The letter said they cannot explain to her why she did not qualify for the non-immigrant visa she was asking for. However, they told her she was free to come back another time if there is any change in the future. We are both from Senegal (West Africa).

The first paragraph of the letter said that she was ineligible for a nonimmigrant visa under the section 214(b). In another paragragh they said she could apply again anytime she want if there is a change with the application form.

  • What exactly did the refusal letter say? What is her nationality? What is your nationality? – gerrit Oct 27 '18 at 14:14
  • The letter said they cannot explain her that she did not qualify for the non immigrant visa she was asking for , however they told her she was free to come back another time if there is any change in the future. – Mansour Oct 27 '18 at 15:00
  • If what occurred was that Medicaid reimbursed the hospital for delivering the child, you may want to consider reimbursing Medicaid to address the issue. To do so, you'd contact the State's Medicaid office which is usually a division of a State’s Department of Health. – Giorgio Oct 27 '18 at 15:23
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    Mansour, the letter should have cited a specific paragraph of US immigration law. The paragraph cited is important, because if it is a paragraph that applies only to nonimmigrant visas then it would not be a barrier to getting an immigrant visa. If it is a paragraph that applies to all visas then it would also be a problem for an immigrant visa application. – phoog Oct 27 '18 at 17:42
  • You have created several accounts. You can merge them, in which case you will be able to comment on your own question and on the answers to that question. – phoog Oct 27 '18 at 18:55
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There is currently no ground to deny someone a visa or deny someone entry based on having used Medicaid. There is a ground inadmissibility if someone is "likely to become a public charge", but the determination of that does not consider non-cash benefits like Medicaid (except Medicaid for long-term institutionalized care). See this USCIS page as well as this section of the Foreign Affairs Manual.

She was denied entry for failure to overcome the presumption of immigrant intent. The presumption of immigrant intent applies to most types of nonimmigrant visas, and it says that the officer must presume the person is an immigrant, and thus ineligible for the nonimmigrant visa, unless they can prove otherwise. This is a generic reason used to deny visas when the officer feels that there is any factor in the applicant's situation they do not like (but there is not necessarily another ground of inadmissibility that applies), because, the theory goes, the negative factor makes it harder to convince the officer that you don't intend to immigrate. This ground of inadmissibility doesn't apply to immigrant visas, so you don't have to worry about that.

There is a proposed rule to change the way that inadmissibility for being "likely to become a public charge" is determined, and this could affect her ability to get a visa or to enter the US. One of the changes is that it considers more types of "public benefits" than before, including Medicaid, which is considered a "heavily weighed negative factor" if used for more than 12 months cumulatively in the previous 36-month period. However, the consideration of additional benefits is not retroactive -- non-cash benefits that were not considered under the previous rules, including Medicaid, are not considered under the new rule as long as they are not used or received after 60 days after the final rule is published. A final rule has not yet been published, so Medicaid she may have received in the past would not be considered even if she doesn't immigrate until after this new rule takes effect.

See the section "(f) Previously Excluded Benefits":

DHS would not consider public benefits under the proposed 8 CFR 212.21(b) that were previously excluded under the 1999 Interim Field Guidance if received before effective date of the final rule.

And the proposed 8 CFR 212.22(d):

(d) Benefits received before [DATE 60 DAYS FROM DATE OF PUBLICATION OF THE FINAL RULE]. For purposes of this regulation, DHS will consider as a negative factor any amount of cash assistance for income maintenance, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs), and programs (including Medicaid) supporting aliens who are institutionalized for long-term care, received, or certified for receipt, before [DATE 60 DAYS FROM DATE OF PUBLICATION OF THE FINAL RULE], as provided under the 1999 Interim Field Guidance , also known as the 1999 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds. DHS does not consider any other public benefits received, or certified for receipt, before such date.

Some of the other changes in the rule include mandatory consideration of factors like age (below 18 or above 61 is a negative factor), health, family status, financial resources (household income should be above 125% of poverty level), and education and skills. If she were to immigrate after the new rule takes effect, she would be subject to these considerations in determining whether she is inadmissible for likely to become a public charge. However, she is probably in working age, so that's not going to be an issue. And if your income is above 125% of poverty level (which you need to in order to sponsor her, unless there is a joint sponsor), that means her household income is too, and so that shouldn't be a problem either.

protected by Community Oct 30 '18 at 2:28

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