Proposed Regulation Would Expand Definition of “Public Charge”

The U.S. Department of Homeland Security (DHS) has issued a proposed regulation regarding inadmissibility on public charge grounds. A public charge is a person who is deemed likely to become financially dependent on public benefits.

Generally speaking, a person applying for lawful permanent residence (commonly referred to as a “green card”) or admission as a nonimmigrant is required to demonstrate that the individual is not likely to become a public charge. The proposed regulation would expand the definition of public charge, and also would require a foreign national seeking an extension of stay or change of status to demonstrate that s/he has not received, is not currently receiving, nor is likely to receive public benefits.

What “Public Charge” Means

Public Charge is a term used while determining admissibility to describe an individual who cannot fully support himself or herself through employment, personal assets, or with the help of family, and instead depends on government benefits and assistance programs. While determining whether or not a person is a public charge, the DHS considers a “totality of circumstances” – primarily considering factors such as age; health; family status; assets, resources and financial status; and education and skills.

The current rules regarding eligibility for various public benefits, and whether a foreign national qualifies depending upon that person’s status in the United States, are fairly complex. Suffice it to say that cash benefit programs are generally off-limits to most categories of foreign nationals in the United States.

Proposed Changes to the Definition of “Public Charge”

Under the proposed rule, the government would still examine the totality of the foreign national’s circumstances. However, the new rule would be far more rigid and unforgiving.

One of the major changes in the proposed regulations would be to add certain non-cash benefits within the definition of public charge. A non-cash benefit is supplementary support in the form of vouchers or direct services to support nutrition, health, and living conditions needs. The DHS is also proposing that even receiving such benefits for a small amount or for a short period of time could amount to a public charge.

With certain exemptions, and keeping the “totality of circumstances” doctrine in mind, the following are non-cash public benefits that would be considered for public charge purposes under the proposed regulation:

1. Nonemergency Medicaid
2. Institutionalization for Long Term Care at Government Expense
3. Premium and Cost Sharing Subsidies under Medicare Part D
4. Housing Programs including Subsidized Public Housing

Insurance Benefits Not the Same as Public Benefits

It should be noted that benefits provided via insurance typically would not be taken into consideration for public charge purposes. For instance, if a foreign national takes paid leave for a short-term disability (e.g., paid maternity leave), the payments generally come from insurance. This generally would not be held against a foreign national for determining whether a person may be a public charge.

Public Charge Questions to be Added to Many Forms

Assuming this rule goes into effect, questions related to being a public charge would be added to many immigration forms, such as the petition for a nonimmigrant worker (form I-129) and the application to extend / change nonimmigrant status (form I-539). Applicants may be required to include additional documentation demonstrating that they are unlikely to utilize public benefits in the U.S.

Rule Would Not Apply Retroactively

If the rule is finalized, it would only apply prospectively. In other words, assuming the new rule is implemented, it would not penalize a foreign national applicant for using a public benefit that was allowed at the time of use.

Conclusion

Stakeholders have until December 10, 2018 to submit comments to the DHS on this proposed regulation. The DHS then must review the comments and issue a final rule before the regulation can go into effect.

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