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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.

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    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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Prior to October 2019, there was 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 did 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 an upcoming rule (see the proposed rule here and final rule here), taking effect October 15, 2019, 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, but her use of Medicaid still wouldn't be relevant. 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, it excludes Medicaid used by pregnant women during the period of pregnancy and up to 60 days after the pregnancy (see this paragraph):

For purposes of this final rule, DHS has excluded consideration of the receipt of Medicaid by aliens under the age of 21 and pregnant women during pregnancy and during the 60-day period after pregnancy.

In addition, 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 October 15, 2019. So Medicaid she may have received in the past, even if not during pregnancy, would not be considered even if she doesn't immigrate until after this new rule takes effect. (See this paragraph:

In addition, and as stated in this final rule, DHS will not apply the new expanded definition of public benefit to benefits received before the effective date of this final rule. Therefore, any benefits received before that date will only be considered to the extent they would have been covered by the 1999 Interim Field Guidance.

And the proposed 8 CFR 212.22(d):

(d) Treatment of benefits received before October 15, 2019. For purposes of this regulation, DHS will consider, as a negative factor, but not as a heavily weighted negative factor as described in paragraph (c)(1) of this section, 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 October 15, 2019, as provided under the 1999 Interim Field Guidance, also known as the 1999 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds. DHS will not consider as a negative factor any other public benefits received, or certified for receipt, before October 15, 2019.

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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