USCIS to Implement Public Charge Rule on 24.Feb.2020

On February 24, 2020, the U.S. Department of Homeland Security (DHS), which includes the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Customs and Border Protection (CBP), will begin implementing the public charge rule that was published in the Federal Register in August 2019. This announcement comes following the U.S. Supreme Court decision on January 27, 2020, that lifted the injunctions against the implementation of this rule, which had previously been imposed by several federal courts.

Changes to August 2019 Version of the Rule

When the DHS implements the new public charge rule on February 24th, there will be a few small, but important, changes from the version that was finalized in August 2019. First of all, the rule will not be enforced in the State of Illinois. This is because a federal judge in Illinois issued an injunction against the rule being enforced in that state; the Supreme Court reversed the nationwide injunctions issued by other federal judges, but left this state-specific injunction in Illinois untouched. If the Illinois injunction is eventually lifted, the DHS will provide updated guidance.

Second, the DHS will not consider a foreign national’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before February 24, 2020, when deciding whether the individual is likely at any time to become a public charge. Similarly, the DHS will not apply the new public charge rule to applications or petitions filed before February 24, 2020. Under the original version of the final rule, the DHS was to apply the rule to public benefits received, and applications and petitions filed, on or after October 15, 2019, which was when the rule initially was scheduled to go into effect. In light of the delay in implementation caused by the injunctions, the DHS has changed the date to February 24, 2020.

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, the Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds has defined public charge 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.” The new public charge rule will replace the 1999 Interim Field Guidance.

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 February 24, 2020. One exception to this, however, is if the person used benefits already prohibited under the 1999 Interim Field Guidance. In that situation, those benefits would be considered as a negative factor, but would not be heavily weighted.

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 actually has 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 DHS, which includes the USCIS and 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 DOS announced its own new public charge rule in October 2019. There is no word yet on when the DOS public charge rule will go into effect.

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 USCIS will post updated forms, submission instructions, and policy manual guidance on the USCIS website next week. Subscribe to the MurthyBulletin to receive future updates delivered to your inbox.

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