DHS issues final public charge rule

Section 212 of the Immigration and Nationality Act (INA) outlines several grounds of inadmissibility, including health-related grounds, criminal and security related grounds, and public charge grounds, which could render a foreign national ineligible for a U.S. non-immigrant or immigrant visa, or ineligible to apply for a green card (i.e., apply for “adjustment of status”) while in the U.S. Specifically, the INA indicates that any foreign national who, in the opinion of the adjudicating officer, “is likely at any time to become a public charge” is inadmissible.

On August 14, 2019, the Department of Homeland Security (DHS) issued a final rule that significantly changes the standard by which DHS will determine whether an applicant is inadmissible as a potential public charge. While the new rule does provide some clarity and guidance as to what was previously an undefined standard, the new rule by all counts introduces a much stricter standard that will likely significantly increase the number of foreign nationals deemed inadmissible, and therefore ineligible for a U.S. visa or lawful permanent residency.

How does the new rule define public charge?

The new rule defines a public charge as any non-U.S. citizen “who receives one or more 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).”

The designated public benefits under the new rule include:

          1. Any federal, state, local, or tribal cash assistance for income maintenance, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and other federal, state, or local cash benefit programs for income maintenance;

          2. Supplemental Nutrition Assistance Program (SNAP);

          3. Section 8 Housing Assistance under the Housing Choice Voucher Program;

          4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;

          5. Medicaid, with certain exceptions for pregnant women and individuals under the age of 21; and

          6. Public housing under Section 9 of the U.S. Housing Act of 1937.

In determining whether receipt of such benefits renders an individual inadmissible, DHS and U.S. Citizenship and Immigration Services (USCIS) in particular, will apply a complex totality of circumstances test that will take into account a range of positive and negative factors.

To whom does the new rule apply?

The new rule will apply to all non-citizens applying for adjustment of status or to change/extend their immigration status after the rule’s effective date, with certain exceptions for various groups including pregnant women and certain age groups. The new rule will not apply to asylees or refugees, as well as other “vulnerable populations” including Violence Against Women Act (VAWA) self-petitions.

As a DHS rule, the new rule technically only applies to adjudications by USCIS, Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE), although USCIS is primarily responsible for adjudicating the relevant immigration applications and petitions. The DHS rule does not apply to public charge determinations made by the Department of State (DOS) for visa applicants outside the U.S., or to the Department of Justice (i.e., immigration court proceedings). However, there is every indication that DHS expects both DOS and DOJ to align their public charge determinations with the new rule, and DOS has already adopted a much stricter standard for public charge determinations.

When will the new rule go into effect?

The new rule will become effective October 15, 2019, and DHS will only apply the new rule to applications and petitions postmarked on or after the effective date. Foreign nationals applying for adjustment of status, or to change/extend their status after this date will be subject to the new standard, and some applicants for adjustment of status will be required to also file a Form I-944 (Declaration of Self-Sufficiency) as part of their adjustment of status applications.

The new rule has already been met with lawsuits intended to stop its implementation, so its future remains uncertain. In the meantime, considering the complexity of the new rule, foreign nationals potentially subject to the new rule should be sure to consult with immigration counsel.