On Monday, August 12, 2019, the United States Department of Homeland Security (DHS) and Citizenship and Immigration Services (USCIS) announced a final rule that clearly defines the long-standing public charge inadmissibility law.

According to section 212(a)(4) of the Immigration and Nationality Act (INA), the government must at a minimum consider a foreign national’s age, health, family status, assets, resources, and financial status as well as education and skills to determine whether he or she is inadmissible under the grounds of public charge. The government may also consider any required affidavit of support.

Revision to Definition of “Public Charge”

Previously, foreign nationals who used non-cash benefits, such as the Supplemental Nutrition Assistance Program (SNAP) and Medicaid were not considered to be public charges which would render them ineligible to change their status to permanent residency or enter the U.S. legally. Monday’s rule revises the definition of “public charge” to mean a foreign national who receives one or more designated public benefits for more than 12 months, in total, within any 36-month period. The rule further defines the term “public benefit” to include:

  1. Cash benefits for income maintenance
  2. Supplemental Security Income (SSI)
  3. Temporary Assistance to Needy Families (TANF)
  4. SNAP
  5. Most forms of Medicaid
  6. Section 8 Housing Assistance under the Housing Choice Voucher Program
  7. Section 8 Project-Based Rental Assistance
  8. Subsidized public housing.

Any public benefits not listed in the final rule are not considered in the public charge inadmissibility determination – such as emergency medical assistance, disaster relief, and national school lunch programs. Some forms of Medicaid benefits – such as for the treatment of an emergency medical condition or services or benefits provided in connection with the Individuals with Disabilities Education Act – will not be considered in the public charge inadmissibility determination.

Totality of Circumstances Standard for Inadmissibility

The final rule furthermore establishes the totality of the circumstances standard for determining whether a foreign national is likely at any time in the future to become a public charge. The totality of circumstances includes, at a minimum:

  1. Age
  2. Health
  3. Family status
  4. Assets
  5. Resources and financial status
  6. Education and skills
  7. Prospective immigration status
  8. Expected period of admission
  9. Sufficient affidavit of support

No single factor by itself is determinative of the public charge inadmissibility.

Other Changes

The final rule also explains how USCIS may, at its discretion, offer a foreign national who is inadmissible only based on the public charge ground the opportunity to post a public charge bond set at the minimum of $8,100 (adjusted for inflation). The actual bond amount would be determined by the individual’s circumstances.

Nonimmigrants in the U.S. who, since obtaining their nonimmigrant status they seek to extend or from which they seek to change, have received designated public benefits above the designated threshold will now be considered generally ineligible for extension of stay and change of status. The final rule does not apply to humanitarian-based immigration programs (e.g. refugees, asylees, special immigrant juveniles, etc.).

The final rule applies to applications and petitions postmarked on or after the effective date of the final rule (October 15, 2019). Any applications and petitions pending with USCIS on the effective date of the final rule will be adjudicated under the 1999 Interim Field Guidance. The final rule states that public benefits received before the effective date of the final rule that were excluded from consideration under the 1999 Interim Field Guidance will not be considered to determine inadmissibility. However, any public benefits that would have been considered under the 1999 Interim Field Guidance that are received before the effective date of the final rule will be considered.

Please do not hesitate to let us know if you have any questions regarding this matter.