Public charge rule change could affect immigration applications

The U.S. government today announced a new rule that modifies the regulations under which immigrants are inadmissible to the United States based on the likelihood that they may become a public charge, that is, dependent on the government for certain public benefits for their livelihood.

The public charge inadmissibility law is not new. But now there will be changes in how it is to be enforced, possibly increasing the number of people who could be disqualified for admission to the United States.

The new rule aims to eliminate different interpretations of the inadmissibility law, clarifying definitions and terms of its implementation.

The rule applies to applicants for admission:

  • Persons seeking adjustment of status to lawful permanent resident status within the United States
  • Persons within the U.S. who have a temporary visa and want to extend their stay in the same nonimmigrant classification.
  • Persons within the United States who have a temporary visa and wish to change their status to a different nonimmigrant classification.

The law of inadmissibility by reason of public charge is not new. It has been more than 100 years since Congress established a statute making persons inadmissible to the United States who are unable to support themselves.

U.S. Citizenship and Immigration Services (USCIS) follows the guidance of the 1999 Interim Field Guidelines on Deportability and Inadmissibility Based on Public Charge Grounds, but must now follow the instructions of the new rule.

What are the changes in the new final rule?

  • Establishes the definition of public charge as a person who receives one or more public benefits for more than 12 months in the aggregate, within any 36-month period. Persons who are considered "public charge" under this definition will generally be inadmissible for change of status or extension of stay.
  • Expands the type of public benefits that will affect immigration applications. It will now include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), most types of Medicaid, and some housing programs, such as Section 8 Housing.
  • Changes the standard used by the U.S. Department of Homeland Security (DHS) to determine how likely it is that an alien will become a "public charge" in the future, making him or her ineligible for admission or adjustment of status. In determining whether an alien is inadmissible on this basis, they must consider the alien's age, health, family status, assets, resources and financial status, education, and skills.
  • Explains how USCIS will exercise its discretionary authority to allow, in limited circumstances, an immigrant to post a public charge bond and obtain adjustment of status, even if he or she has been found inadmissible as a public charge. Sets the minimum bond at $8,100. The actual bond will depend on the circumstances of the immigrant.

Under certain circumstances, it allows a nonimmigrant to obtain a waiver of public charge inadmissibility.

Who are exempt from being a public charge

The new rule excludes the following persons from the definition of public charge for the use of public benefits:

  • Active duty or reserve members of the U.S. Armed Forces, their spouses and children
  • Internationally adopted children acquiring U.S. citizenship
  • Foreign nationals under 21 years of age and pregnant women using Medicaid benefits
  • Persons using Medicaid for school services (including services provided under the Individuals with Disabilities Education Act)
  • People who use Medicaid benefits for emergency medical services

Rule does not apply to immigration programs based on humanitarian grounds, such as:

Refugees, asylum seekers, special immigrant juveniles (SIJS), certain victims of human trafficking (T nonimmigrant visa), victims of qualified criminal activity (U nonimmigrant visa) or victims of domestic violence (VAWA self-petitioners), among others.

Rule does not apply to U.S. citizens

If U.S. children, parents or spouses of undocumented persons are properly receiving public benefits, this should not influence the public charge determination of the immigrant visa applicant.

Public benefits granted to U.S. citizens must be used exclusively by them and not by their undocumented family members. Never lie on applications for public benefits, including hiding income or assets. Lying may subject the immigrant to other penalties. When in doubt, consult with attorneys who specialize in public benefits and immigration law before taking any action.

How does the new rule affect immigration applications?

The final rule is effective 60 days from the date of publication in the Federal Register at midnight Eastern Time on October 15, 2019.

USCIS will apply the final public charge inadmissibility rule only to applications and petitions postmarked or electronically filed on or after the effective date of the rule.

Applications and petitions filed and pending with USCIS prior to October 15, 2019 will be adjudicated according to the 1999 Interim Guidelines.

Here you can watch the announcement by Ken Cuccinelli, acting director of ICE, during a press conference: