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Officially Returning to Pre-2019 Public Charge Rule to Determine Admissibility

After years of litigation followed by uncertainty, the Department of Homeland Security (DHS) has taken the official action of issuing a new final rule that “restores the historical understanding of a ‘public charge’ that had been in place for decades . . . .” The new rule, which goes into effect on December 23, 2022, basically codifies the Interim Field Guidance that had been in effect from 1999 until 2019.

In 2019, the Trump Administration started to consider supplemental public health benefits and nutritional assistance as part of the public charge determination. That 2019 rule, which was enjoined through litigation, frightened immigrants and their families into foregoing government services to which they were entitled. It also created a good deal of confusion in the immigrant community about what was and was not allowed. By enacting the new final rule and doing public outreach, DHS hopes to meet the goal of making the public charge assessment “consistent with America’s bedrock values” and restoring faith in the system.

Under the “new” rule, the public charge determination will be based on:

  • The age, health, assets, resources, financial status, family status, education, and skills of the noncitizen;

  • The applicant’s prior or current receipt of public cash assistance for income maintenance, such as;

    • Supplemental Security Income (SSI);

    • State, territorial, Tribal, or local cash benefit for income maintenance (often referred to as “General Assistance”); or

    • Cash assistance under Temporary Assistance for Needy Families (TANF) for income maintenance.

  • Long-term institutionalization at government expense; and

  • The Form I-864, Affidavit of Support, if required.

USCIS has clarified that past or current receipt of the above cash benefits does not, alone, render an applicant inadmissible. It is only one factor in the assessment that includes consideration of the totality of the circumstances at the time of the application. Indeed, because the decision on public charge is based on the totality of circumstances, it is possible that an applicant who has never received public benefits in the past could still be found inadmissible. Moreover, the public charge rule does not (and never has) require repayment of public benefits to avoid a finding of inadmissibility.

Public benefits that are not considered under the final rule include, but are not limited to:

  • Medicaid and other health insurance and health service programs;

  • Child Health Insurance Program (CHIP);

  • Nutrition programs;

  • Housing benefits and childcare services;

  • Head Start;

  • Job-training programs;

  • COVID-19 vaccines and public benefits related to the coronavirus pandemic; and

  • Benefits received by family members of the applicant (unless that benefit is the family’s only means of financial support).

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 263

About this Author

Carla Josephine Stenzel Attorney Employment Law Jackson Lewis Omaha

Carla Stenzel is an associate in the Omaha, Nebraska, office of Jackson Lewis P.C. Her practice focuses on representing companies in employment-based immigration matters including non-immigrant and immigrant petitions.

After graduating law school and taking the Nebraska Bar Exam in 2016, she began working in the area of business immigration. She has worked with corporate clients ranging from start-ups to large multinational companies that have been established for many years. She has experience with multiple non-immigrant...