Department of Homeland Security published its Final Rule yesterday on Inadmissibility on Public Charge grounds. The final rule has a lot of information relevant to nonimmigrants (F-1 visa holders, H1-B holders, etc.) and folks planning to file for their green card in the U.S., also known as adjustment of status. Here is my quick summary.
Before the rule change, public charge generally meant a person who is dependent on the government for their living expenses. It had been interpreted to mean folks who is receiving government cash assistance for maintenance or institutionalization for long-term care at government’s expense.
In the past, public benefits meant Temporary Assistance for Needy Families (TANF grants), federal and state cash benefit programs (EAEDC in Massachusetts), and Supplemental Security Income (SSI). An immigrant found to be a Public Charge is inadmissible, therefore, cannot adjust their status to Legal Permanent Resident (Green card Holder).
The new rule broadens the definition of public charge to include additional non-cash assistance such as Supplemental Nutrition Assistance Programs (SNAP) or Food Stamps, Medicaid (except for benefits received for an emergency medical condition), Section 8 housing vouchers or Project-based Section 8 housing subsidies.
Here are my quick takes on the Final Rule:
- Certain immigrants are exempt from the Public Charge Ground of Inadmissibility. Certain immigrants’ receipt of public benefits will not be considered by DHS. Immigrants who qualify as U-Visa (direct or indirect victims of crime), T-Visa (victims of Trafficking), VAWA (victims of domestic violence) are exempt. This means that public benefits received while in exempt status will not be considered by DHS. In addition, the public charge rule does not apply to immigrants granted asylum or adjusting to lawful permanent resident based on asylee status. Members of the U.S. Army and their families and some international adoptees are exempt. Children who may acquire citizenship are also exempt from the public charge rule.
- New Standard for Public Charge. A Public Charge is an immigrant who receives one or more public benefit for more than 12 months in the aggregate within any 36-month period. For example, if you received 2 public benefits in one month, it will count as two months of public benefit. This new rule will apply to applications postmarked on or after the effective date of the rule. If an immigrant receives public benefits within the 36 months prior to application or adjustment of status, that may be viewed in negative light. I expect more regulations on public benefits received prior to the rule’s effective date. Also, applications currently pending will not be subject to the rule.
- Receipt of Medicaid as a Public Benefit. DHS will consider receipt of Medicaid (for ex. MassHealth in Massachusetts) as a public benefit. Health plans with Tax credits, subsidies through Affordable Care Act, and health insurance purchased through marketplace outside of Medicaid are not considered a public benefit. Medicaid received by immigrant children under the age of 21 and pregnant women during pregnancy and during the 60-day period after pregnancy will not be considered by DHS under this rule. We should note that WIC (Supplemental Nutrition Program for Women, Infants and Children) is not a public benefit under the Rule. Also, DHS will not consider the use of state-funded programs or food banks as public benefits. Also excluded are Medicaid services and benefits provided to children through his or her individualized education plan (IEP), typically in school settings.
- Non-immigrant and Receipt of Public Benefits. Non-Immigrants, such as F-1, H1B, J-1 visa holders, will have to show that they have not received public benefits for more than 12 months within a 36-month period since obtaining their non-immigrant status up to the time their application of stay or change of status request.
- Legal Permanent Resident (LPR) Returning from Trip Abroad. Generally, the pubic charge inadmissibility rule does not apply to LPRs returning from a trip abroad. The only exception is where the LPR has been absent from the U.S. for more than 180 days, then Customs and Border Patrol (CBP) may inquire as to the LPR’s admissibility, including the receipt of public benefits.
- Totality of Circumstances Standard. USCIS officer will consider a list of positive and negative factors and determine in the totality of the immigrant’s circumstances whether he or she is likely at any time to become a public charge. It is unclear to me how exactly will these factors be weighed. Some of the factors to consider include the following: age (between 18 and 61 years old is a positive), health, employment history, education (high school, college degrees, skills, licenses), immigrant’s proficiency in English or other languages in addition to English, income and assets (income above 125% of poverty level, credit scores, etc.), availability of private health insurance (not purchased with tax credits), an Affidavit of Support, the close relationship between Sponsor/Joint-Sponsor to the Immigrant, etc.
- Immigrants found inadmissible only on public charge grounds may adjust their status by posting a public charge bond with DHS. The rule refers to immigrants who have no “heavily weighted negative factors” as deserving DHS discretion here. This will be a case-by-case determination. There will be a new Form I-945.
Update: 2020/7/29: Federal Judge in NY ruled that the Trump administration cannot enforce the Public Charge regulations against immigrants in the US or abroad during the COVID-19 Pandemic.
Update: 2020/9/22 Court of Appeals for the Second Circuit issued a decision that allows USCIS to resume the Public Charge rule and Form I-944, Declaration of Self-Sufficiency. After October 13, 2020, USCIS will reject any I-485 or I-539 filings that do not include the I-944 form.