September 14, 2019
DHS published a new public charge rule that dramatically changes the standard of whether an applicant for admission to the U.S. or for adjustment of status is likely to become a “public charge.” “Public charge” is not defined in the immigration law, but since 1999, the term has meant a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionaliz[ed] for long-term care at government expense.” The rule takes effect on October 15, 2019 (see below), unless lawsuits already filed enjoin its implementation.
The rule is significant and is expected to result in an increase of denials for both immigrants and nonimmigrants. It is expected to deter persons from seeking benefits for which they are eligible, even if they are exempt from this public charge rule, because of the fear it could disqualify them for permanent residency or a visa.
Specifically, the rule affects persons seeking admission to the U.S. who could be deemed “inadmissible” by determining whether they are “more likely than not at any time in the future” – a forward looking test – to become a public charge. These persons include: adjustment of status applicants, nonimmigrants being inspected for admission to the United States at a port of entry (POE); persons with an immigrant visa at a POE; lawful permanent residents (LPRs) returning to the United States after six months or more; and persons who are seeking admission after entering without inspection.
For nonimmigrants seeking either a change or extension of status, USCIS will looking at whether the beneficiary received in the past – a backward looking test – one or more public benefits, as defined in the regulation “for more than 12 months in the aggregate within any 36-month period” before USCIS adjudicates the change or extension of status request.
The new rule is not supposed to affect LPRs applying for citizenship through naturalization.
Changed Standard for Admissibility
The rule defines “public charge” and “public benefit” by using a totality of circumstances approach for making a public charge inadmissibility determination that weighs the foreign national’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. Some factors will be more heavily weighed than others (see below).
Public Benefits Specified
The relevant public benefits specified in the new rule are:
- Any federal, state, local, or tribal cash assistance for income maintenance, including:
- Social Security Income (SSI);
- Temporary Assistance for Needy Families (TANF);
- 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);
- Supplemental Nutrition Assistance Program (SNAP);
- Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD;
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
- 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
- Public housing under section 9 of the U.S. Housing Act of 1937.
It is important to note that, unless enjoined by lawsuits already filed (see below), the effective date of the rule is October 15, 2019, and should not be applied until then. USCIS should not consider it to be a negative factor if the person received the relevant 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. Therefore, it is expected that pending applications prior to the effective date should not be affected or adjudicated under the new rule.
New Form I-944, Declaration of Self-Sufficiency
Adjustment of status applicants will need to submit a new Form I-944, Declaration of Self-Sufficiency, along with Form I-864 Affidavit of Support. The new rule does not remove the Form I-864 from the filing requirements, as the I-864 is a factor in USCIS’s public charge analysis.
Form I-944 will contain the information regarding the additional factors to be considered by USCIS. USCIS officers will now consider the I-944 factors as well as a sufficient Form I-864. If USCIS makes a public charge determination against the applicant, there is now a public charge bond application, Form I-945, where USCIS can issue at a minimum a $8,100 bond so that the applicant can be admitted.
While nonimmigrants are not required to submit a Form I-944, there will be a new question on both Forms I-129 and I-539 about receipt of public benefits as a nonimmigrant as of the date of filing and through adjudication.
Factors to be Considered
USCIS will weigh heavily certain factors against the applicant, including where:
- A foreign national who is not a full-time student and is authorized to work cannot show current employment, recent employment history, or a reasonable prospect of future employment;
- A foreign national has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Oct. 15, 2019;
- A foreign national has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured, and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition;
- A foreign national has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.
USCIS will weigh these factors in the applicant’s favor:
- A foreign national has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250 percent of the Federal Poverty Guidelines for his or her household size;
- A foreign national is authorized to work and is currently employed in a lawful industry with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of his or her household size;
- A foreign national has private health insurance appropriate for the expected period of admission, so long as the alien does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.
Foreign Nationals Exempt or Who May Obtain a Waiver
The rule does not apply to U.S. citizens, even if the U.S. citizen is related to a noncitizen who is subject to the public charge ground of inadmissibility. Also, the rule does not apply to the following groups who are either exempt from being determined a public charge, or may get a waiver for public charge when applying for a green card or other benefits with USCIS. These include:
- Asylum applicants
- Refugees and asylees applying for adjustment to permanent resident status
- Amerasian Immigrants (for their initial admission)
- Individuals granted relief under the Cuban Adjustment Act
- Individuals granted relief under the Nicaraguan and Central American Relief Act
- Individuals granted relief under the Haitian Refugee Immigration Fairness Act
- Individuals applying for a T Visa
- Individuals applying for a U Visa
- Individuals who possess a T visa and are trying to become a permanent resident (get a green card)
- Individuals who possess a U visa and are trying to become a permanent resident (get a green card)
- Applicants for Temporary Protected Status
- Certain applicants under the LIFE Act Provisions
Similarly, DHS will not consider certain benefits given to military families. Nor is DHS supposed to consider certain Medicaid benefits where benefit was: (1) for the treatment of an “emergency medical condition,” (2) as services or benefits provided in connection with the Individuals with Disabilities Education Act, (3) as school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law, (4) by aliens under the age of 21, or (5) by pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.
The Departments of State and Justice are also expected to align this new USCIS rule with their policies and rules.
Litigation Already Pending
The new public charge rule has already been met with litigation by 13 states (California, Washington, Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island) seeking injunctive relief, with cases pending in the U.S. District Court in the Northern District of California, and U.S. District Court for the Eastern District of Washington. Litigation efforts seek injunctive relief based upon the fact that the new rule unlawfully expands the definition of “public charge,” in violation of federal immigration statutes. Specifically, they argue:
“The Department’s new definition of “public charge” is contrary to its longstanding meaning in the Immigration and Nationality Act.”
“The Rule is arbitrary, capricious, and an abuse of discretion because – among other reasons – it reverses a decades-old, consistent policy without reasoned analysis, offers an explanation for the Rule that runs counter to the overwhelming weight of evidence before the Department, and disingenuously promotes as its purpose self-sufficiency in the immigrant population when, as abundantly shown by the administrative record, its effect is precisely the opposite.”