USCIS Publishes Final Rule on Inadmissibility on Public Charge Grounds

On August 12, 2019 the Department of Homeland Security (DHS) announced a final rule regarding inadmissibility on public charge grounds. This final rule amends DHS regulations by prescribing how DHS will determine whether a foreign national is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future. The rule also makes nonimmigrant foreign nationals who have received certain public benefits above a specific threshold generally ineligible for extension of stay and change of status.

DHS has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received, which the Department believes will better ensure that applicants subject to the public charge inadmissibility ground are self-sufficient. The rule defines the term “public charge” to mean a foreign national 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 rule further defines the term “public benefit” to include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs. The regulation also excludes from the public benefits definition: public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring U.S. citizenship; Medicaid for foreign nationals under 21 and pregnant women; Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and Medicaid benefits for emergency medical services.

This rule also makes certain nonimmigrant foreign nationals (i.e., F, J, H, L, O, TN, etc.) in the United States who have received designated public benefits above the designated threshold ineligible for change of status and extension of stay if they received the benefits after obtaining the nonimmigrant status they seek to extend or from which they seek to change.

This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds and goes into effect at midnight Eastern, October 15, 2019, 60 days from the date of publication in the Federal Register.

In the coming weeks, USCIS will conduct engagement sessions for the public and other interested groups to ensure the public understands which benefits are included in the public charge inadmissibility rule and which are not.

Iandoli Desai and Cronin, P.C. will continue to monitor and provide updates as they become available.