Proposed Regulation to Modify Public Charge Rule

The U.S. Department of Homeland Security (DHS) has proposed eliminating the current regulations used to decide if an immigrant 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 Public Charge Rule

In 1999, the legacy Immigration and Naturalization Service (INS) created a public charge rule that focused on whether the foreign national is likely to become primarily dependent on the government for subsistence. This rule remained largely unchanged until 2019, when Trump, during his first administration, pushed to create a far broader, more subjective public charge rule. In 2022, however, the Biden administration implemented a final rule that codified a public charge rule substantially similar to the 1999 rule. The Trump administration is now proposing a rule to again provide the USCIS with far broader discretion to consider a plethora of factors when making a public charge determination.

Overview of Proposed Rule

The primary goal of this new proposal is to rescind the 2022 final rule. Rather than the “bright line primary dependence standard” of the current rule, the new rule would do the following:

• Broaden the scope of factors USCIS officers may consider when making a case-by-case public charge determination
• Permit officers to take into consideration certain benefits that are currently excluded from public charge determinations (This includes public benefits such as Medicaid, CHIP, SNAP, and housing benefits.)
• Emphasize the principle that immigrants should be “self-reliant” and that government benefits should not serve as an incentive for immigration

Conclusion

If this proposal is finalized, the process for getting a green card or visa could become stricter and more cumbersome. Moreover, foreign nationals will face greater uncertainty regarding what types of programs and benefits may increase the risk of a public charge finding. MurthyDotCom will continue to track this proposal and provide updates, as appropriate.

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