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USCIS Implements Final Rule on Public Charge Ground of Admissibility

U.S. Citizenship and Immigration Services’ (USCIS) final rule on public charge inadmissibility has been in effect since December 23, 2022. Accordingly, USCIS released a revised Form I-485, Application to Register Permanent Residence or Adjust Status, for applications submitted on or after December 23, 2022, for adjustment of status to comply with the newly codified rule. The new form includes additional questions for applicants subject to the public charge rule on finances, skills, certain public benefit history, and institutionalization history.

The rule is largely a codification of previously issued USCIS guidance on this topic, with some additional clarification and detail. Under the final rule, public charge inadmissibility applies to those who are “primarily dependent” on government programs for support. The final rule further specifies certain public benefits that may trigger public charge inadmissibility, including the following: Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF); state, tribal, territorial, or local cash benefit programs for income maintenance; and long-term institutionalization at government expense.

USCIS has explicitly omitted the following public benefits from consideration for purposes of making a public charge determination:

  • Nutritional programs, such as the Supplemental Nutrition Assistance Program (SNAP) and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)

  • Health programs, such as the Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), and health insurance through the Affordable Care Act

  • Housing programs and benefits

  • Education/childcare programs, such as Head Start, assistance under the Child Care and Development Block Grant (CCDBG) Act, and foster care and adoption benefits

  • Disaster relief programs

  • Earned benefits, such as Social Security, government pensions, and unemployment insurance

  • Other miscellaneous benefits, such as job training programs; tax credits, such as the Child Tax Credit (CTC) or Earned Income Tax Credit (EITC); home energy assistance programs; and assistance provided by local communities through public or private nonprofit organizations

Based on the totality of the circumstances, a noncitizen whom USCIS determines is likely to become primarily dependent on government benefits for support may be denied permanent residency based on a public charge ground of inadmissibility.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XIII, Number 31

About this Author

Mark Wu Austin Employment Immigration Attorney Ogletree Deakins Nash Smoak & Stewart PC

Mr. Wu practices in the Austin office of Ogletree Deakins. His practice focuses on employment-based immigration matters, including assisting clients with major nonimmigrant visa categories such as H-1B, TN, L-1A, L-1B, etc. Mr. Wu also guides employers throughout the green card process including PERMs, 1140 immigrant petitions, and adjustment of status applications.

Prior to joining Ogletree, Mr. Wu practice employment-based immigration law at a large corporate immigration firm, where he managed a wide variety of IV and NIV case types for the...