Final Rule on Public Charge Ground of Inadmissibility

ALERT: Judges before U.S. District Courts for the Southern District of New York (PDF, 68 KB), Northern District of California (PDF, 888 KB), Eastern District of Washington (PDF, 631 KB), Northern District of Illinois (PDF, 137 KB), and District of Maryland (PDF, 498 KB) have ordered ordered that DHS cannot implement and enforce the final rule on the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act. The court orders also postpone the effective date of the final rule until there is final resolution in the cases. Most of the injunctions are nationwide, and prevent USCIS from implementing the rule anywhere in the United States.

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. Since 1996, federal laws have stated that aliens generally must be self-sufficient. 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 Law: 

The primary immigration law today is the Immigration and Nationality Act of 1952 (the INA, or the Act), as amended.  

Section 212(a)(4) of the INA (8 U.S.C. 1182(a)(4)): “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible[…] In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s-(I) age;  (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills . . . .” 

8 U.S.C. § 1601 (PDF)(1): “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.” 

8 U.S.C. § 1601 (PDF)(2)(A): “It continues to be the immigration policy of the United States that – aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.” 

8 U.S.C. § 1601 (PDF) (2)(B): It is also the immigration policy of the United States that “the availability of public benefits not constitute an incentive for immigration to the United States.”  

DHS Final Rule: 

On August 14, 2019, the U.S. Department of Homeland Security (DHS) published the Inadmissibility on Public Charge Grounds final rule that codifies regulations governing the application of the public charge inadmissibility ground under INA section 212(a)(4). On Oct. 2, DHS issued a corresponding correction. On Oct. 10, 2018, DHS issued a Notice of Proposed Rulemaking (NPRM), which was published in the Federal Register for a 60-day comment period. DHS received and considered over 266,000 public comments before issuing this final rule. The final rule provides summaries and responses to all significant public comments.  

The final rule enables the federal government to better carry out provisions of U.S. immigration law related to the public charge ground of inadmissibility. 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 final rule does not create any penalty or disincentive for past, current, or future receipt of public benefits by U.S. citizens or aliens whom Congress has exempted from the public charge ground of inadmissibility. The final 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. The rule also does not apply to aliens whom Congress exempted from the public charge ground of inadmissibility, such as refugees, asylees, Afghans and Iraqis with special immigrant visas, and certain  nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, special immigrant juveniles, or to those who DHS has granted a waiver of public charge inadmissibility.  

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. 

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. 

Questions and Answers 

Q. When does the final rule go into effect?  

A. 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. Applications and petitions postmarked (or, if applicable, submitted electronically) before Oct.15, 2019, will be adjudicated under the prior policy, the 1999 Interim Field Guidance. In addition, regardless of whether the application or petition was filed before, on, or after the effective date, DHS will not consider receipt of public benefits excluded from consideration under the 1999 Interim Field Guidance (for example, Supplemental Nutrition Assistance Program [SNAP] and Medicaid) unless such benefits are received on or after Oct. 15, 2019.  

For public benefits that were considered under the 1999 Interim Field Guidance (for example, Supplemental Security Income [SSI], General Assistance or Temporary Assistance for Needy Families [TANF]) or institutionalization for long-term care, DHS will consider the receipt of those benefits before Oct. 15, 2019 as a negative factor in the totality of the applicant’s circumstances but will not consider such receipt a heavily weighted negative factor, regardless of the duration of past receipt.  

Q. What does the final rule change? 

A. The final rule changes the definitions for public charge and public benefits, and changes the standard that DHS uses when determining whether an alien is likely to become a “public charge” at any time in the future and is therefore inadmissible and ineligible for admission or adjustment of status.  

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. 

The rule also makes nonimmigrants who have received, since obtaining the nonimmigrant status they are seeking to extend or from which they are seeking to change, designated public benefits for more than 12 months in the aggregate within any 36-month period generally ineligible for change of status and extension of stay. 

Q. Who is subject to the public charge inadmissibility ground? 

A. 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.  

Q. Who is exempt from this rule? 

A. Congress has exempted certain classes of immigrants from the public charge ground of inadmissibility. For instance, refugees, asylees, and Afghans and Iraqis with special immigrant visas are exempt from public charge inadmissibility. This rule includes provisions clarifying the classes of individuals who are exempt from this rule, as well as those who are able to obtain a waiver of public charge inadmissibility. 

Q. Which benefits are included in public charge inadmissibility determinations? 

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) 

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 320, 8 U.S.C. 1431 or INA 322, 8 U.S.C. 1433. 

DHS also will not consider:  

  1. The receipt of Medicaid for the treatment of an emergency medical condition;  
  2. Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;  
  3. 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. Medicaid benefits received by an alien under 21 years of age; or  
  5. Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.   

The final rule also clarifies that 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. 

Q. What amount/duration of public assistance matters? 

A. The final rule includes a single duration-based threshold for the receipt of public benefits as part of the definition of public charge. The final rule considers an alien a public charge if he or she receives public benefits for more than 12 months in the aggregate in any 36-month period, such that the receipt of two benefits in one month counts as two months.  

However, because a public charge inadmissibility determination is prospective in nature, in the totality of the circumstances, any duration (and amount) of public benefits received may be considered in the totality of the circumstances.  

USCIS will also consider whether an alien seeking an extension of stay or change of status has received, since obtaining the nonimmigrant status he or she seeks to extend or from which he or she seeks to change, public benefits for more than 12 months in total in any 36-month period (such that, for instance, the receipt of two benefits in one month counts as two months).   

Q. Whose benefits are considered? 

A. Under the rule, DHS will only consider the direct receipt of benefits by an alien for the alien’s own benefit, or where the alien is a listed beneficiary of a 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 alien’s household to the applicant unless the applicant is also a listed beneficiary of the public benefit. Similarly, any income derived from such benefits received by other household members will not be considered as part of the applicant’s household income.  

Q. Which benefits are not considered?   

A.  The list of public benefits in the rule is exhaustive with respect to non-cash benefits. However, cash benefits for income maintenance may include a variety of general purpose means-tested cash benefits provided by Federal, state, local, or tribal benefit granting agencies. Any benefits not listed not in the rule are excluded from consideration. Notably, the rule does not include consideration of emergency medical assistance, disaster relief, national school lunch programs, foster care and adoption, student and mortgage loans, energy assistance, food pantries and homeless shelters and Head Start. In addition, DHS will not consider, as part of a public charge inadmissibility determination, public benefits received by noncitizen members of the U.S. armed forces serving in active duty or in any of the Ready Reserve components, and by the service member’s spouse and the service member’s children. Similarly, DHS will not consider:  

  1. The receipt of Medicaid for the treatment of an emergency medical condition;  
  2. Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;  
  3. 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. Medicaid benefits received by an alien under 21 years of age; or 
  5. Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.   

Q. How will DHS determine whether someone is likely at any time to become a public charge for admission or adjustment purposes? 

A. Under the final rule, “likely at any time to become a public charge” means more likely than not at any time in the future to become a public charge (in other words, more likely than not at any time in the future to receive one or more of the designated public benefits 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).  

Under this final rule, inadmissibility based on the public charge ground is determined by looking at the factors set forth in 8 CFR 212.22 and making a determination of the applicant’s likelihood of becoming a public charge at any time in the future based on the totality of the circumstances. This means that the adjudicating officer must weigh both the positive and negative factors when determining whether someone is more likely than not at any time in the future to become a public charge. As required by section 212(a)(4) of the Act, and this final rule, when making a public charge inadmissibility determination, a USCIS officer must consider the applicant’s: 

  • Age; 

  • Health; 

  • Family status; 

  • Assets, resources, and financial status; 

  • Education and skills; 

  • Prospective immigration status; 

  • Expected period of admission; and  

  • Sufficient Form I-864, when required under section 212(a)(4)(C) or (D) of the INA. 

Q. What factors weigh heavily in favor of a determination that someone is likely at any time to become a public charge? 

A. The following factors will generally weigh heavily in favor of a finding that an alien is likely at any time to become a public charge: 

  • The alien is not a full-time student and is authorized to work but cannot show current employment, recent employment history, or a reasonable prospect of future employment. 

  • The alien 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. 

  • The alien 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. 

  • The alien has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.  

Q. What factors weigh heavily against a determination that someone is likely at any time to become a public charge? 

A. The following factors would weigh heavily against a finding that an alien is likely to become a public charge: 

  • The alien has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for his or her household size. 

  • The alien is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of his or her household size. 

  • The alien 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. 

 

 

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