PUBLIC CHARGE RULE

On February 24, 2020 United States Citizenship and Immigration Services (USCIS) implemented the Inadmissibility on Public Charge Grounds final rule nationwide. The public charge rule makes sure the United States does not admit aliens who will need to rely upon public benefits for their maintenance. This final rule will apply only to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. For applications and petitions sent by commercial courier (such as UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt.

 

USCIS also issued policy guidance to address the Inadmissibility on Public Charge Grounds Final Rule. The new guidance is effective as of February 24, 2020, and applies to all applications and petitions postmarked on or after February 24, 2020.

 

USCIS will not consider the application for, certification or approval to receive, or receipt of certain previously excluded non-cash public benefits (such as SNAP, most forms of Medicaid, and public housing) before February 24, 2020. Similarly, USCIS will not consider as a heavily weighted negative factor receipt of previously included public benefits (such as SSI and TANF) before February 24, 2020.

Policy Highlights

 

  • Defines the term “public charge” for purposes of inadmissibility determinations under INA 212(a)(4). An alien who is considered “likely to become a public charge” is inadmissible to the United States. A public charge determination may be made at the time of an application for a visa or at the time of adjustment of status. This determination will lead to a denial of their visa or adjustment of status application.
  • Lists the categories of applicants that are exempt from, or may obtain a waiver of, the public charge inadmissibility ground. These categories are:

               -Asylum applicants
                -Refugees and asylees applying for adjustment of status
                -Amerasian immigrants applying for initial admission
                -Individuals granted relief under the Cuban Adjustment Act
                -Individuals granted relief under NACARA
                -Individuals granted relief under the Haitian Refugee Immigrant Fairness Act
                -Applicants for T visas
                -T visa-holders applying for adjustment of status
                -Applicants for U visas
                -U visa-holders applying for adjustment of status
                -Applicants for temporary protected status (TPS)
                -Certain applicants under LIFE Act provisions

 

  • Identifies the types of public benefits that are considered in public charge inadmissibility determinations, as well as in applications and petitions for extension of stay and change of status.
  • Identifies the factors that USCIS considers and explains that officers review the totality of the applicant’s circumstances when determining public charge inadmissibility.
  • Explains that a sufficient Affidavit of Support Under Section 213A of the INA, when required, is but one factor in the totality of the circumstances, and does not, by itself, mean an alien is not inadmissible based on the public charge ground.
  • Explains the public charge bond process for adjustment of status applications filed with USCIS.
  • Explains the public benefits condition that applies to nonimmigrants seeking extension of stay and change of status.
  • Explains that the public charge ground of inadmissibility does not apply in naturalization proceedings except that, for the purposes of determining whether a naturalization applicant was lawfully admitted for permanent residence under INA 318, the officer’s review includes whether the alien was inadmissible based on the public charge ground.
  • USCIS will post updated versions of Forms I-129, I-485 I-539, I-864, and I-864EZ and corresponding instructions, as well as Policy Manual guidance.
  • These updated forms must be used beginning February 24, 2020, otherwise applications and petitions using incorrect editions of the forms will be rejected.


Summary of Rule

The Department of Homeland Security (DHS) final public charge rule dramatically changes the standard by which DHS determines whether an applicant for adjustment of status or admission is “likely at any time to become a public charge” and therefore inadmissible to the United States (note that some noncitizens, such as asylees and refugees, are exempt from public charge determinations). Under the final rule at 8 CFR 212.21(a), USCIS removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives or is likely to receive one or more of the specified public benefit, 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 final rule at 8 CFR 212.21(b) defines a public benefit as:

  1. Any federal, state, local, or tribal cash assistance for income maintenance, including:

     

    1. Supplemental Security Income (SSI);
    2. Temporary Assistance for Needy Families (TANF);
    3. Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names);
  2. Supplemental Nutrition Assistance Program (SNAP);
  3. Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD;
  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
  5. Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
  6. Public housing.

A sufficient affidavit of support will not be outcome-determinative as to whether an individual is likely at any time in the future to become a public charge. Rather, to make that assessment, USCIS adjudicators will apply a complex totality of circumstances test that weighs the alien’s age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors. USCIS notes in the final rule that it interprets “likely at any time” to mean that it is “more likely than not” that the individual at any time in the future will receive one or more public benefits as defined by the rule.

One heavily weighted negative factor is an applicant’s receipt of one or more of the specified public benefits for 12 or more months in the aggregate within any 36-month period, beginning no earlier than the 36 months prior to the application for adjustment of status or adjustment. Critically, however, DHS will not regard as a negative factor the receipt of specified benefits prior to the rule’s effective date, with the exception of cash assistance and long-term institutionalization benefits that DHS already considers relevant to the public charge determination under current policy.

Under the final rule, DHS will also conduct a more limited public charge determination of nonimmigrants seeking a change or extension of status, by removing the future-looking requirement of the public charge determination, and only considering whether the noncitizen has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they seek to change from or extend, through the adjudication of that request.

 

Consequences of Rule

The DHS final rule, which is vastly more restrictive than current policy and might have the following consequences:

  • Could result insignificantly higher USCIS denial rates of adjustment of status applications subject to public charge determinations. Moreover, the multi-factor test will leave substantial discretion to adjudicators and could produce inconsistent and unpredictable decision-making.
  • Additionally, the rule will prove burdensome for the public and DHS alike. It requires that adjustment applicants subject to public charge determinations prepare and submit lengthy Form I-944, Declaration of Self-Sufficiency, with their adjustment filings. USCIS’s review of hundreds of thousands of these new forms each year will further slow the agency’s already severely delayed case processing.
  • The rule will also compound the chilling effect felt throughout immigrant communities. A recent Urban Institute Study found that about 14% of adults in immigrants families disclosed that that they or a family member opted not to participate in a non-cash public benefit program in 2018 due to concern over jeopardizing their green card eligibility. The final rule will likely deter even greater numbers of individuals from obtaining vital medical assistance and meeting other basic needs, even when receipt of the benefits in questions is not penalized under the rule.