UPDATE: As of February 24, 2020, the public charge rule has been implemented nationwide after the Supreme Court stayed the limited state-wide injunction in Illinois against the Department of Homeland Security. At the same time, the Department of State also began implementing its amended public charge rule, and visa applicants from abroad should prepare Form DS-5540 ahead of their visa interview in case the consular officer requests it. For more information read the announcement on the Department of State’s website.
On January 30, 2020 the USCIS announced that it will resume enforcing the Inadmissibility on Public Charge Grounds Final Rule (“Final Rule”) and begin implementing it on February 24, 2020. Foreign nationals who are applying for visas and green cards from within the United States — through a process known as “Adjustment of Status” — will be subject to the Final Rule starting on February 24, 2020. For visa applicants who are outside of the country, the Final Rule has not yet been implemented. The Department of State announced in October 2019 to delay enforcement until they first finalized their own information collection form and changes that they would need to make to their policy manual.
The Final Rule had originally become effective on October 15, 2019 but was enjoined due to litigation after lawsuits were filed to prevent the Trump Administration’s attempt to enforce the Public Charge rule, which was seen as an effort to expand the government’s ability to deny access to green cards or visas for legal immigrants who would become dependent on public assistance.
On January 27, 2020, the U.S. Supreme Court lifted the injunction and allowed the Final Rule to go forward, with exception to the State of Illinois, where the Final Rule remains enjoined. This article offers information concerning the Final Public Charge Rule, what factors will be taken into consideration, and which individuals are likely to be affected by the change.
Background on the Public Charge Rule
Who is subject to the public charge inadmissibility ground?
Unless specifically exempted by Congress, all foreign individuals seeking immigrant or nonimmigrant visas abroad are subject to the public charge inadmissibility ground, as are individuals seeking admission to the United States on immigrant or nonimmigrant visas, and individuals seeking to adjust their status. In certain cases, even lawful permanent residents returning from a trip abroad will be subject to inadmissibility determinations, depending on the circumstances.
Immigrants who have been exempted by Congress from the public charge ground of inadmissibility include refugees, asylees, and Afghans and Iraqis with special immigrant visas.
For a general overview and developments in this area read our previous articles here.
How the Final Rule Currently Affects People Already Inside the United States
Under the Final Rule, the Department of Homeland Security (“DHS”) that oversees USCIS is determining whether an individual already in the United States is “likely at any time 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 within any 36-month period. Inadmissibility will be determined by looking at the factors established in 8 CFR 212.22. The adjudicating officer will need to weigh both the positive and the negative factors when determining whether someone qualifies as a potential public charge. Factors that will be consider are 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.
Negative actors that will weigh heavily against an individual and lead to a public charge determination
An individual in question who is not a full-time student and is capable of working but does not have a record of current employment, recent employment history, or a reasonable prospect of future employment is likely to be seen as a potential public charge. An individual that has received or been 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 individual applied for admission or adjustment of status on or after Oct. 15, 2019 may also be seen as a public charge. Therefore, legal immigrants using Medicaid or food stamps are more likely to come under scrutiny. An individual who 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, an individual who 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, has the potential to be considered a public charge. Finally, an individual who has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds is likely to be seen as a public charge.
Positive factors that will likely help an individual to avoid a public charge finding
Factors such as having a steady household income, assets, resources, and support from a sponsor (excluding any income from illegal activities or from public benefits) work in favor of a foreign individual attempting to avoid being classified as a public charge. Furthermore, being authorized to work and being 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, and having private health insurance appropriate for the expected period of admission are also helpful factors, 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.
Government benefits included in public charge inadmissibility determination
When determining whether someone may be a public charge and therefore inadmissible, the DHS will only consider the following public benefits:
- 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)
Permissible government benefits that will not be considered to weigh against an individual
The DHS will not consider public benefits received by an individual who is enlisted in the U.S. armed forces or serving in active duty or in any of the Ready Reserve components. It will also not consider the receipt of public benefits by the spouse and children of such service members. This rule further provides that the DHS will not consider public benefits received by children (including adopted children) who will acquire U.S. citizenship.
In addition, the DHS will not consider:
- The receipt of Medicaid for the treatment of an emergency medical condition
- Services of benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act
- 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
- Medicaid benefits received by an alien under 21 years of age
- Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy
Finally, the 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.
Timeline and New Forms
The Final Rule will apply to applications and petitions postmarked or submitted electronically on or after February 24, 2020. For applications and petitions that are sent by commercial courier, such as UPS, FedEx, or DHL, the postmark date is the date reflected on the courier receipt. USCIS has clarified that, when deciding whether an individual is likely to become a public charge according to the Final Rule, it will not consider an individual’s application before February 24, 2020.
USCIS has posted updated versions of Forms I-129, I-485 I-539, I-864, and I-864EZ and corresponding instructions, as well as Policy Manual guidance on www.uscis.gov. These updated forms must be used beginning February 24, 2020. Any applications using the incorrect versions of the forms will be rejected.
Plan Ahead and Be Prepared
Due to the many changes under the Final Rule, green card and visa applicants who are applying to USCIS from within the US will need to be even more attentive and thorough to comply with the government’s requirements for a successful application. This means being diligent, do the research, and speak with an attorney as early as possible. With careful planning, an applicant will maximize the chance of getting an application approved.