DHS Final Public Charge Rule Effective from 23.Dec.2022

The U.S. Department of Homeland Security (DHS) has published a final rule in the Federal Register, which reaffirms long-standing guidance applicable for determinations of whether an individual is likely to become a public charge. 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.).

Background on the Public Charge Rule

This final rule mirrors guidance of the legacy Immigration and Naturalization Service (INS) from back in 1999. Under the Trump Administration, the DHS implemented a far harsher, complex, and burdensome standard for making a public charge determination. The rule was eventually blocked by several federal courts. The DHS rescinded this rule in March 2021, and issued its proposed rule in February 2022, which has now been finalized.

Focus on Totality of Applicant’s Circumstances

Under the new rule, which takes effect on December 23, 2022, the probability of a foreign national’s becoming a public charge will be determined by analyzing the totality of the applicant’s circumstances. The factors taken into consideration will include the foreign national’s “age; health; family status; assets, resources, and financial status; and education and skills,” as well as the information provided in the form I-864 Affidavit of Support, when required.

Assistance Impacting or Exempt from Public Charge Analysis

The Final Rule clarifies that prior or current receipt of supplemental security income (SSI); cash assistance for income maintenance; or long-term institutionalization at government expense will be considered in determining the applicant’s public charge determination.

The rule clarifies that assistance outside of these categories will not be considered as public benefits, and receipt of benefits on behalf of another will not be considered in a public charge determination. Factors under the Trump administration rule, like the receipt of non-cash benefits such as food stamps, Medicaid, and housing benefits or the foreign national’s credit history, will no longer be considered by the DHS.

Conclusion

The new public charge rule provides a balanced approach to welcome immigrants to the United States, while also protecting the interests of U.S. taxpayers. It ensures the process is far more streamlined than the convoluted and burdensome public charge rule implemented by the prior administration in 2019, which caused confusion and multiple lawsuits.

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