Public Charge Ground of Inadmissibility Greatly Expanded

On August 14, 2019, the U.S. Department of Homeland Security (DHS) published the final rule, Inadmissibility on Public Charge Grounds, that greatly expands the categories of public benefits considered in the determination of whether a foreign national may be deemed a public charge (i.e., a person who is financially dependent on public benefits). The new rule, which will replace the current rules set out by the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, is scheduled to go into effect on October 15, 2019. The final rule will only apply to applications and petitions filed on or after October 15, 2019. If an applicant received public benefits prior to October 15, 2019, this should not be taken into consideration for purposes of making a public charge determination, unless the person would be considered a public charge under the prior 1999 Interim Field Guidance.

Background on Public Charge as a Ground of Inadmissibility

Under U.S. immigration law, a foreign national who is considered likely to become a public charge is inadmissible, and therefore will not be issued a U.S. visa, granted admission to the United States, or allowed to adjust status (i.e., be issued a green card while in the U.S). Since 1999, “public charge” has been defined as a person who is “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

New Rule Expands Definition of “Public Charge”

The final rule redefines public charge to mean a foreign national “… who receives one or more public benefits … for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).” The rule also expands the types of programs considered as public benefits.

Public Benefits Include Both Cash and Certain Non-Cash Benefits

In addition to cash assistance for income maintenance, “public benefit” will now include the following non-cash benefits:

  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Supplemental Nutrition Assistance Program (SNAP)
  • Section 8 Housing Assistance under the Housing Choice Voucher Program
  • Section 8 Project-Based Rental Assistance
  • Subsidized Public Housing
  • Federally funded Medicaid (with certain exclusions)

Per the final rule, public non-cash benefits not listed in the rule are not considered for the public charge inadmissibility determination.

Totality of the Circumstances Test for Likelihood of Becoming Public Charge

In the context of an application for admission to the U.S. or adjustment of status, the immigration officer will use a totality of the circumstances test to determine the likelihood that the foreign national applicant is more likely than not to become a public charge in the future.

Heavily Weighted Factors for Public Charge

This rule is prospective – that is to say, the fact that the applicant was previously a public charge, as defined by the new rule, does not automatically mean that the foreign national is likely to become a public charge in the future. However, one of the heavily weighted negative factors is if an applicant is currently receiving one or more public benefits, and/or has received public benefits for more than 12 months in the aggregate, within the 36-month period immediately prior to the application for a visa, admission, or adjustment of status. As indicated above, however, the 36-month period under consideration generally would not include any time prior to October 15, 2019.

Some of the other heavily weighted negative factors include:

  • The applicant has been diagnosed with a medical condition that is likely to require extensive medical treatment, and the individual does not have insurance, and is unlikely to be able to obtain insurance or the financial means to pay for the reasonably foreseeable medical costs.
  • The applicant is not a full-time student and is authorized to work, but is unable to demonstrate current employment, recent employment history, or a reasonable prospect of future employment.

Some of the heavily weighted positive factors include:

  • The applicant’s household has income, assets, or resources of at least 250 percent of the Federal Poverty Guidelines for the applicant’s household size.
  • The applicant is authorized to work and is currently employed in a legal industry with an annual income of at least 250 percent of the Federal Poverty Guidelines for the applicant’s household size.

Other Less Important Factors to Consider

The final rule also includes a long list of less important factors that may be taken into consideration, either positively or negatively, when determining a foreign national’s likelihood of becoming a public charge. Some of these factors include the applicant’s age, health, education, assets, income, credit history, and even English proficiency. No single factor is outcome determinative and the determination is made by weighing all of the factors that are relevant to the foreign national’s case.

Limited Public Charge Test for Nonimmigrants Filing to Extend or Change Status

In applying for an extension or change of nonimmigrant status (e.g., H1B, H-4, F-1), the USCIS will conduct a far more limited public charge review. The USCIS will only look to see whether the applicant has actually received the designated benefits for more than 12 months in the aggregate within the 36-month period since being granted the nonimmigrant status that the applicant wishes to extend or change, up until the time of adjudication of the application.

Rule Does Not Directly Impact Visa Applications

This rule only applies to the U.S. Department of Homeland Security, which includes the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Customs and Border Protection (CBP). The U.S. embassies and consulates, however, which are responsible for issuing nonimmigrant and immigrant visas, fall under the jurisdiction of the U.S. Department of State (DOS). Accordingly, this rule redefining the pubic charge provisions does not apply to visa applications. However, the DHS expects that, ultimately, the DOS will implement public charge rules that mirror those of the DHS.

Exceptions of Categories not Impacted by New Public Charge Provisions

The final rule does not apply to refugees, asylees, or recipients of other humanitarian visas, such as U visas for crime victims or T visas for trafficking victims. The rule also provides that a foreign national will not be penalized if other members of the household, including any U.S. citizen children, are receiving public benefits. Additionally, a foreign national currently serving in the U.S. Armed Forces, as well as Medicaid recipients who are pregnant or younger than 21 years of age will not be disadvantaged by relying on public assistance.

Finally, public benefit programs that would not be considered a negative factor in a foreign national’s visa or green card application include adoption benefits, emergency and disaster relief; the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); and the Children’s Health Insurance Program (CHIP).

Conclusion

The expansion of the definition of “public charge” has been subject to lawsuits by states and organizations. If any of these lawsuits is successful, it could delay the implementation of this final rule. Otherwise, the rule will very likely go into effect on October 15, 2019

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.