September 16, 2019

September 16, 2019

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DHS Promulgates Public Charge Rule to “Promote Self-Sufficiency,” Penalize Reliance on Public Benefits

On August 14, 2019, the Department of Homeland Security (DHS) published the final version of its public charge rule in the Federal Register. According to a statement by DHS, the rule is intended to formalize the way in which the agency determines if an individual applying for a nonimmigrant visa or adjustment of status (to obtain a green card) is likely to become a public charge—a determination that would generally make the person inadmissible to the United States. The new rule is a broad expansion of not only the types of public benefits that can be considered, but of the discretion given to immigration officers in determining who is “more likely than not” to become a public charge.

This article provides a summary of the most notable changes included in the public charge rule and their likely impact.

Defining a Public Charge

What’s new?

The final rule now defines a “public charge” as an alien who receives one or more public benefits (as defined below) for more than 12 months in the aggregate within any 36-month period. Under the rule, receipt of two benefits in the same month counts as two months.

What changed?

Under the Immigration and Nationality Act (INA), an individual is inadmissible for a nonimmigrant visa or a green card if, at the time of application, he or she is deemed “likely at any time to become a public charge.” Until now, the definition of public charge had never been formalized by regulation. Since 1999, immigration officers have relied on field guidance issued by the former Immigration and Naturalization Service (INS), which described a public charge as someone reliant on government-provided cash assistance or long-term care (hereinafter, “the 1999 Interim Guidance”). Non-cash benefits, such as healthcare and food stamps, were deliberately excluded from consideration.

Under the final rule, DHS will now consider whether a person is (1) more likely than not; (2) at any time in the future; (3) to become a public charge (as per the new definition); (4) based on the totality of the alien’s circumstances.

What’s the impact?

The new standard imposed by DHS for determining who is likely to become a public charge, based on the INA, is determined largely by subjective analyses that must be made by immigration officers.

Redefining “Public Benefits”

What’s new?

DHS has expanded the list of public benefits that may be considered in determining an applicant’s likelihood of becoming a public charge.

What changed?

The expanded list departs from prior guidance and expressly includes government programs that provide food support, housing assistance, and healthcare coverage.

Original list:

  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Any federal, state, local or tribal cash assistance for income maintenance

New additions:

  • Medicaid (with limited exceptions)
  • Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps)
  • Any benefits related to institutionalization for long-term care at government expense
  • Section 8 Housing Choice Voucher Program and Rental Assistance Program
  • Public Housing

The final rule covers only direct receipt by the individual and does not include public benefits received by members of the individual’s household. Nor does it include public benefits received by those enlisted in the U.S. Armed Forces or Ready Reserves or their families at the time of receipt of the benefits.

What’s the impact?

The inclusion of the additional programs—specifically those that provide food, housing, and healthcare support—may have a chilling effect on access to services that are lawfully available to individuals or family members because of the impact that obtaining the services may have on their immigration status. DHS says that it will offer public education opportunities to clarify which programs and benefits are included under the public charge grounds of inadmissibility.

Weighted Factors

What’s new?

DHS plans to weigh certain factors more heavily. The rule grants immigration officers broad discretion to determine what is likely to interfere with an individual’s ability to work, go to school, or support himself or herself.

What changed?

The INA requires immigration officers to consider an applicant’s age, health, family status, finances, and education or skills when determining the person’s likelihood of becoming a public charge, but DHS has taken that requirement a step further by introducing “weighted factors” that DHS views as more indicative of who is likely to require government support in the future.

The following are examples of negatively weighted factors:

  • Being younger than 18 years old or older than 61 years old
  • Poor health
  • Large family size (larger households require more support)
  • Lack of private health insurance
  • Low income, low credit score, and/or being in debt
  • Current or prior (only those received after the final rule is published) receipt of public benefits
  • Having little or no employment history
  • Lack of high school diploma, higher education and/or job skills and training;
  • Inability to speak English

DHS has identified four scenarios that will be weighted more heavily than others. The following is a summary of the heavily weighted negative factors:

  • The individual is authorized to work, but is not currently employed or enrolled in school full time and has no prospect of future employment.
  • The individual has received, been certified, or been approved to receive one or more public benefits for more than 12 months in the aggregate within any 36-month period in the 3-year period immediately preceding the individual’s application for admission or adjustment of status on or after October 15, 2019.
  • The individual was found inadmissible or deportable on public charge grounds by an Immigration Judge or the Board of Immigration Appeals.

The below factors, on the other hand, are considered heavily weighted positive factors:

  • Assets, resources of support of at least 250 percent of the Federal Poverty Guidelines (FPG) for a household of the individual’s size;
  • An annual income of at least 250 percent of the FPG for a household of the alien’s size.
  • Private health insurance coverage to cover reasonably foreseeable medical costs, including medical costs related to a condition that is likely to require extensive treatment or interfere with the individual’s ability to work, attend school, or provide care for him or herself.

Based on the final rule, it appears that an Affidavit of Support alone will no longer be sufficient evidence that an individual will not rely on government support. DHS has proposed the introduction of a new Form I-944, Declaration of Self-Sufficiency that must be submitted in addition to the Affidavit of Support. The proposed I-944 will require adjustment of status (green card) applicants to provide extensive personal information regarding their assets, health insurance, education, family status, debts, employment history, and more.

What’s the impact?

Once again, some of the weighted factors are highly subjective. They place a burden on immigration officers to make determinations about complicated issues such as healthcare and finances—subjects in which they are not trained. Commenters on the rule expressed concern that these factors would disadvantage lower-income individuals in favor of wealthy, more educated individuals.

Public Charge Bond

What’s new?

An individual who is denied a green card on the basis of his or her likelihood to become a public charge may be eligible to submit a public charge bond, as set by DHS, if the individual is otherwise admissible.

What changed?

DHS may, in its discretion, offer an individual the opportunity to post a public charge bond if the individual is found inadmissible solely on the basis of his or her potential to become a public charge. The minimum amount of the bond that must be posted is $8,100, but the actual amount set by DHS presumably could be higher. The bond is discretionary and not likely to be offered if DHS has determined that the individual triggers one or more of the heavily weighted negative factors. The bond must remain in effect until U.S. Citizenship and Immigration Services (USCIS) grants a request to cancel it on the basis that the individual has become a U.S. citizen, died, been a lawful permanent resident for five years, permanently departed the United States, or there have been changes to an immigration status that is not subject to the public charge ground of inadmissibility.

What’s the impact?

It is not yet clear what the impact of the public charge bond will be since it will only be issued at the discretion of DHS. Several questions remain concerning how frequently a bond will be approved, the amount that will be required, and who will administer the public charge bond program.

Nonimmigrants

What’s new?

Nonimmigrants who seek to change their status or extend their stays will be required to prove that they have not received one or more public benefits for more than 12 months in the aggregate within any 36-month period since obtaining the nonimmigrant status that they seek to change or extend. DHS will only consider benefits received on or after October 15, 2019.

What changed?

While DHS will  not evaluate nonimmigrant applicants on their likelihood of becoming public charges (and they will not need to complete the Form I-944), they will be required to demonstrate that they have not previously received public benefits as described above. USCIS intends to amend several application forms (including the I-129 and I-539 forms) by adding questions related to the receipt of public benefits. Applicants for nonimmigrant visas and their dependents will now be required to answer additional questions when they are applying for extensions or changes of status so that USCIS officers may make this determination.

What’s the impact?

The impact on employment-based nonimmigrants is expected to be minimal, as applicants for these visas typically have full-time job offers with salaries above the threshold needed to receive public benefits. A serious concern exists, however, that as with applicants for green cards, applicants for nonimmigrant visas may withdraw from benefits for which they (or potentially U.S. citizen children) would otherwise be eligible.

Additional Notes

The final rule will take effect on October 15, 2019. USCIS will only apply the final rule to applications and petitions postmarked (or submitted electronically) on or after October 15, 2019. Applications and petitions already pending with USCIS as of that date will be adjudicated based on the 1999 Interim Guidance.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

Melissa Manna, Ogletree Deakins Law Firm, Raleigh, Immigration Practice Group Writer
Immigration Practice Group Writer

Melissa Manna is an Immigration Practice Group Writer. Her primary focus is writing and editing legal articles relating to immigration for the firm’s online and print publications, websites, and newsletters.

Prior to joining Ogletree Deakins, Melissa spent 9 years as in-house counsel at TowerCo, one of the largest independent wireless tower companies in the U.S., representing the company in all aspects of commercial real estate. During that time she managed due diligence, advised and implemented risk management solutions, and closed transactions...

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Associate

Andrea is an associate attorney in the Atlanta office of Ogletree Deakins. She focuses her practice on employment-based immigration.

Andrea completed her undergraduate studies at the University of California, Berkeley and received her Juris Doctor from the University of North Carolina School of Law. During her law school career, Andrea gained experience working in the Immigration and Human Rights Clinic, preparing non-immigrant U-visa petitions for victims of violent crimes, and interning in the Health and Public Assistance Section of the North Carolina Department of Justice. She was also the Online Editor for the North Carolina Journal of Law and Technology (NC JOLT).

919-789-3187