CHANGES TO “PUBLIC CHARGE” WILL INCREASE RISK OF INADMISSIBILITY

USCIS NEWS RELEASE – AUG 14, 2019        

Self-sufficiency has long been a basic principle of U.S. immigration law. Since the 1800s, Congress has put into statute that individuals are inadmissible to the United States if they are unable to care for themselves without becoming public charges.  This final rule provides guidance on how to determine if someone applying for admission or adjustment of status is likely at any time to become a public charge. 

The final rule clarifies the factors considered when determining whether someone is likely at any time in the future to become a public charge, is inadmissible under section 212(a)(4) of the INA, and therefore, ineligible for admission or adjustment of status.   

The rule applies to applicants for admission, aliens seeking to adjust their status to that of lawful permanent residents from within the United States, and aliens within the United States who hold a nonimmigrant visa and seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification

The U.S. Citizenship and Immigration Services (USCIS) is scheduled to publish a final rule on August 14, 2019 that will greatly expand the categories of public benefits looked at to determine whether a foreign national may be deemed a public charge (i.e., a person who is likely to become financially dependent on public benefits). The rule is slated to go into effect 60 days after publication.

The new rule will only apply to applications and petitions filed after the rule has gone into effect. Further, benefits that were applied for or received prior to the effective date will not be impacted.

The final rule goes into effect on Oct. 15, 2019, and will only be applied to applications and petitions postmarked (or, if applicable, submitted electronically) on or after Oct. 15, 2019

In limited circumstances, and in USCIS’ discretion, an alien who wants to adjust their status may post a bond and obtain adjustment of status, despite being determined inadmissible on public charge grounds. The final rule sets the minimum bond amount at $8,100; the actual bond amount would be dependent on the alien’s circumstances. In addition, in certain circumstances, an alien may obtain a waiver of the public charge ground of inadmissibility. 

Who is subject to this rule?

Unless specifically exempted by Congress, aliens seeking immigrant or nonimmigrant visas abroad; aliens seeking admission to the United States on immigrant or nonimmigrant visas; and aliens seeking to adjust their status to that of a lawful permanent resident from within the United States are subject to the public charge ground of inadmissibility.  

While most lawful permanent residents are not subject to inadmissibility determinations, including public charge inadmissibility, upon their return from a trip abroad, some lawful permanent residents can be subject to the public charge ground of inadmissibility because specific circumstances dictate that they be considered applicants for admission.  

Which benefits are included in Public Charge I/A ?

DHS will only consider public benefits as listed in the rule:   

• Any federal, state, local, or tribal cash assistance for income maintenance   
• Supplemental Security Income (SSI)  
• Temporary Assistance for Needy Families (TANF) 
• Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)  
• Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”) 
• Section 8 Housing Assistance under the Housing Choice Voucher Program 
• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)  
• Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq. 
• Federally funded Medicaid (with certain exclusions) 

DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person. 

DHS will also not attribute receipt of a public benefit by one or more members of the applicant’s household to the applicant unless the applicant is also a listed beneficiary of the public benefit. 

In addition, this rule also clarifies that DHS will not consider the receipt of designated public benefits received by an alien who, at the time of receipt, or at the time of filing the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces, and will not consider the receipt of public benefits by the spouse and children of such service members. The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under INA section 320, 8 U.S.C. 1431. 

Similarly, DHS will not consider the Medicaid benefits received: (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, and (5) by pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.