The Public Charge Final Rule: FAQs for Immigration Practitioners
On Aug. 14, 2019, the Department of Homeland Security (DHS) issued final regulations that dramatically change the assessment of public charge inadmissibility. Although the rule was enjoined by five district courts, the Supreme Court on Jan. 27, 2020 stayed the only nationwide injunction that had been in effect. That means that the agency is now able to implement the final rule throughout the United States except for Illinois, where a statewide injunction of the rule is still in effect. USCIS has announced that the new rules affect adjustment applications postmarked on or after Feb. 24, 2020.
Overall, the new regulations will make it much more difficult for an applicant for adjustment of status or for an immigrant visa to show that he or she is not likely to become a public charge. The FAQs below address many of the concerns raised by practitioners about how the new regulations will affect their clients.
I. Summary of the New Test for Public Charge Inadmissibility
The term “likely at any time to become a public charge,” which is a ground of inadmissibility found in INA § 212(a)(4), has been redefined in four important ways:
In determining public charge inadmissibility, the regulation shifts attention away from the petitioner/sponsor’s income as reported on the affidavit of support and re-directs it to the applicant’s age, health, family status, assets/resources/financial status, and education/skills. It defines these terms in ways that may make it very difficult for low-income, low-skilled, under-educated, elderly, or disabled applicants to overcome a public charge finding.
Instead of being applied to those who might become “primarily dependent” on a designated list of state and federal programs, it is to be applied to those who are more likely than not to receive any of nine benefits for more than 12 months in the aggregate within any 36-month period.
DHS has expanded the list of designated programs that can be considered when applying the public charge “totality of the circumstances” test. Prior to the regulation becoming final, the agency could only consider receipt of three cash assistance programs— Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance—as well as a Medicaid program that covers institutionalization for long-term care. The final regulation adds five new programs: non-emergency Medicaid; Supplemental Nutrition and Assistance Program (SNAP, formerly food stamps); Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing. Only benefits received by the applicant are considered.
The regulation allows for the posting of a public charge bond for applicants who, in the opinion of the USCIS or State Department, might otherwise fail the public charge test.
II. Overview of Who is Affected by the DHS Final Rule on Public Charge
1. Which non-citizens are subject to the public charge ground of inadmissibility and the new rule?
All applicants for admission to the United States are subject to the public charge inadmissibility under INA § 212(a)(4) unless specifically exempted, as discussed below. The groups of non-citizens who are affected by the grounds of inadmissibility include:
Applicants for adjustment of status in the United States
Applicants for an immigrant visa abroad
Applicants for a nonimmigrant visa abroad
Applicants for admission at the U.S. border who have been granted an immigrant or nonimmigrant visa, and
Nonimmigrants applying for an extension or change of status within the United States (new policy under the final rule).
2. Who is most affected by the public charge ground of inadmissibility and the new rule?
The non-citizens most affected by the public charge ground of inadmissibility are those seeking lawful permanent resident (LPR) status based on a family relationship. These include the spouses, children, and unmarried adult sons and daughters of a U.S. citizen or LPR and the parents, siblings, and married sons and daughters of a U.S. citizen. Approximately two-thirds of the one million non-citizens who obtain LPR status every year base it on a family relationship.
While nonimmigrants (e.g., students, tourists, and temporary workers) are also subject to the public charge ground of inadmissibility, this does not usually present a significant barrier. Most of these applicants must also establish that they do not intend to immigrate to the United States (reside permanently) and have the resources to support themselves while they are here temporarily. This new rule will require them to prove they have not accessed certain benefit programs at the time they apply for an extension or a change of their nonimmigrant status.
LPRs who have been absent from the United States for a continuous period in excess of 180 days are also subject to the grounds of inadmissibility and thus could be questioned as to their likelihood of becoming a public charge when they seek reentry at a port of entry.
3. Who is not subject to the public charge ground of inadmissibility?
Some of the most common groups of non-citizens who are not subject to the public charge ground of inadmissibility and thus not affected by this new rule include the following:
Refugee applicants and refugees who are applying for adjustment of status
Asylum applicants and asylees who are applying for adjustment of status
Applicants for withholding of removal or relief under the Convention Against Torture
Applicants for initial or re-registration of Temporary Protected Status (TPS)
Applicants for initial or renewal of Deferred Action for Childhood Arrivals (DACA) status
Cubans who are applying for adjustment of status under the Cuban Adjustment Act
Amerasians who are applying for adjustment of status
Afghan and Iraqi interpreters and translators who are applying for special immigrant visas (SIV)
Applicants for Special Immigrant Juveniles Status (SIJS)
Victims of certain crimes who are applying for a U nonimmigrant visa or U visa holders applying for adjustment of status
Victims of trafficking who are applying for a T nonimmigrant visa; T visa recipients who are applying for adjustment of status no longer have to seek a waiver of public charge inadmissibility
Victims of domestic violence who are applying for relief under the Violence Against Women Act (VAWA), including approved self-petitioners who are applying for adjustment of status
Applicants for “registry” based on their having resided in the United States since before January 1, 1972
Applicants for benefits under the Nicaraguan Adjustment and Central American Relief Act (NACARA)
Applicants for benefits under the Haitian Relief and Immigrant Fairness Act (HRIFA)
Lautenberg parolees who are applying for adjustment of status.
4. Are non-citizens who were once exempt from pubic charge inadmissibility always exempt?
No. The public charge ground of inadmissibility is dependent on the immigration program the non-citizen is applying for. If a person was in a category that was not subject to public charge, such as TPS, he or she would nevertheless be subject to public charge if applying for adjustment of status in a family-based category. Note, however, that benefits received by an individual who was not subject to the pubic charge ground of inadmissibility when the benefits were received are not considered.
5. Even when the public charge ground does not apply, are there situations where receipt of public benefits can be a negative factor?
Many forms of immigration benefits are discretionary, meaning that the adjudicator weighs various factors to decide if the applicant deserves to be granted the benefit she or he is seeking. Discretionary benefits include applications for waivers of inadmissibility, adjustment of status, and certain forms of relief from removal, including non-LPR cancellation. If the non-citizen is applying for a discretionary benefit where public charge inadmissibility is inapplicable, the significance of receipt of public benefits depends on the specific circumstances and form of relief sought. For example, in non-LPR cancellation, receipt of public benefits may be a negative consideration, but may also provide support for a factor related to the exceptional and extremely unusual hardship standard required for relief. In a case where a non-citizen is applying for discretionary relief not subject to public charge inadmissibility and is also eligible for and receiving public benefits, it is highly unlikely that