Public Charge Rule Implementation

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On January 27, 2020, in a 5-4 decision, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against Department of Homeland Security’s (DHS) public charge rule, allowing DHS to implement the public charge rule nationwide, except for Illinois, which a statewide injunction against the rule remains in effect.

USCIS announced that it will begin implementing the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on February 24, 2020. USCIS has clarified that it will not consider an individual’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before February 24, 2020 (instead of the original October 15, 2019), when deciding whether the foreign national is likely at any time to become a public charge under the Final Rule.

The term “likely at any time to become a public charge,” which is a ground of inadmissibility found in INA § 212(a)(4), has been redefined in four important ways:

  • In determining public charge inadmissibility, the regulation shifts attention away from the petitioner/sponsor’s income as reported on the affidavit of support and re-directs it to the applicant’s age, health, family status, assets/resources/financial status, and education/skills. It defines these terms in ways that may make it very difficult for low-income, low-skilled, under-educated, elderly, or disabled applicants to overcome a public charge finding.

  • Instead of being applied to those who might become “primarily dependent” on a designated list of state and federal programs, it is to be applied to those who are more likely than not to receive any of nine benefits for more than 12 months in the aggregate within any 36-month period.

  • DHS has expanded the list of designated programs that can be considered when applying the public charge “totality of the circumstances” test. Prior to the regulation becoming final, the agency could only consider receipt of three cash assistance programs— Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance—as well as a Medicaid program that covers institutionalization for long-term care. The final regulation adds five new programs. It is important to note however, that only benefits received by the applicant are considered.

  • The regulation allows for the posting of a public charge bond for applicants who, in the opinion of the USCIS or State Department, might otherwise fail the public charge test.

Many immigrants don’t have to worry about “public charge”, for example:

• Lawful Permanent Residents (green card holders) applying for US citizenship

• Lawful Permanent Residents (green card holders) applying to renew their expired cards

• Refugees and asylees, including people applying for asylum

• People applying for or re-registering for Temporary Protected Status (TPS)

• Violence Against Women Act (VAWA) self-petitioners

• Victims of crime or trafficking who hold a U or T visa

• People with Special Immigrant Juvenile Status, including people applying for this status

Under the final rule, DHS will also conduct a more limited public charge determination of nonimmigrants seeking a change or extension of status, by removing the future-looking requirement of the public charge determination, and only considering whether the noncitizen has received designated benefits (listed below) for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they seek to change from or extend, through the adjudication of that request.

The public benefits listed at 8 CFR 212.21(b) and 22 CFR 40.41(c), receipt of which on or after February 24, 2020 will be counted towards this threshold, include the following: (Benefits other than these are not defined as public benefits for purposes of these rules.)

  1. Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:

    • (i) Supplemental Security Income (SSI);

    • (ii) Temporary Assistance for Needy Families (TANF); or

    • (iii) Federal, State or local cash benefit 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) (commonly known as "food stamps");

  3. Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD;

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

  5. Medicaid under 42 U.S.C. 1396 et seq., except for:

    • (i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);

    • (ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);

    • (iii) 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;

    • (iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).

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

USCIS will post 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 during the week of February 3. These updated forms must be used beginning February 24, 2020, otherwise applications and petitions using incorrect editions of the forms will be rejected.

If you have received public benefits in the past or could require public assistance, we recommend that you contact Iandoli Desai & Cronin to schedule a consultation.