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Implications of New Public Charge Rule

22 Aug

Effective October 15, 2019, U.S. Department of Homeland Security (DHS) will begin implementation of a new rule for inadmissibility on “public charge” grounds unless litigation halts its implementation. The rule would not be retroactive.

Foreign Nationals Impacted

This new public charge rule impacts:

  1. Foreign nationals inside the United States in valid U.S. nonimmigrant visa status applying for lawful permanent residency, or “green cards”; and,
  2. To a lesser extent, foreign nationals inside the United States seeking a change or extension of status. 

This rule does not apply to applications already pending with DHS prior to October 15, 2019.  The U.S. Department of State is also anticipated to implement similar policies impacting foreign nationals outside of the United States applying for a visa to the United States.

Existing “Public Charge” Grounds for Inadmissibility

Section 212(a)(4) of the Immigration and Nationality Act (INA) provides that a foreign national who is “likely to become a public charge” is inadmissible to the United States.  Although the INA does not contain a definition of “public charge,” DHS has interpreted this term to mean 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.”

To avoid the foreign national becoming a burden to the United States, the law requires the sponsor file an Affidavit of Support in family-based immigrant (permanent resident) cases and some employment-based immigrant cases. Similarly, the law requires filing an Affidavit of Support for visa applicants. If the sponsor does not have sufficient income or assets, another affidavit of support is required so that if the foreign national is unable to support himself or herself then there is someone other than the government who will bear the responsibility of providing financial support.  Foreign nationals have avoided findings of public charge because the Affidavit of Support is a contractual agreement saying that the sponsor will support the foreign national if needed.

This The public charge determination may be made by U.S. Citizenship and Immigration Services (CIS) when an individual applies for an adjustment of status to lawful permanent residency, as well as by the U.S. Department of State (DOS) when a foreign national applies for a U.S. visa at a U.S. Embassy or Consulate abroad.

Implications of New Public Charge Rule

This rule changes the definition of “public charge” and “public benefit” and focuses on the standard by which DHS determines whether a foreign national is “likely at any time to become a public charge.” Under the final rule which will be codified at 8 CFR 212.21(a), a “public charge” will be defined as a noncitizen “who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period.” “[S]pecified public benefit[s]” include:

  1. “Any federal, state, local, or tribal cash assistance for income maintenance, including: 
    1. Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
    2. Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.;
    3. 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);
  2. Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c;
  3. Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f;
  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
  5. 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
  6. Public housing under section 9 of the U.S. Housing Act of 1937”

Receipt by the foreign national of public benefits below this new threshold (of receipt of public benefits for more than 12 months in the aggregate within any 36-month period) for “public charge” can be considered when CIS determines if the foreign national is likely at any time to become a public charge.

CIS Officers reviewing petitions and applications are expected to apply a totality of the circumstances assessment to make this “public charge” determination, rather than relying upon an Affidavit of Support which is permitted under immigration law and has been the practice of USCIS and legacy INS (Immigration and Naturalization Service) for decades. 

Public benefits received prior to the October 15, 2019, implementation date of this rule should not be considered, but a possible interpretation of the rule could mean for example that receipt of two distinct benefits in a single month could count as two months of receiving benefits.  This rule also provides for this assessment to be made at the time of a nonimmigrant visa petition for a foreign national seeking a change or extension of status, not only when applying for an adjustment of status with CIS.

The complexity of this multiple factor test being applied by CIS Adjudicating Officers is expected to result in inconsistent decision-making and a significant increase in USCIS denial rates of adjustment of status applications and possibly nonimmigrant visa petitions which did not previously contain this analysis.  Similar procedures and requirements implemented by DOS could result in increased denials of consular visa applications.

Foster will continue to monitor the impact of this new rule and will make additional information available in future Immigration Updates© and on its website