A. The
final rule goes into effect on Oct. 15, 2019, and will only
be applied to applications and petitions postmarked (or, if
applicable, submitted electronically) on or after Oct. 15,
2019. Applications and petitions postmarked (or, if applicable,
submitted electronically) before Oct.15, 2019, will be
adjudicated under the prior policy, the 1999 Interim Field Guidance. In addition, regardless
of whether the application or petition was filed before, on, or after the
effective date, DHS will not consider receipt of public benefits excluded from
consideration under the 1999 Interim Field Guidance (for example, Supplemental
Nutrition Assistance Program [SNAP] and Medicaid) unless such benefits are
received on or after Oct. 15, 2019.
For public
benefits that were considered under the 1999 Interim Field Guidance (for
example, Supplemental Security Income [SSI], General Assistance or
Temporary Assistance for Needy Families [TANF]) or institutionalization
for long-term care, DHS will consider the receipt of those benefits
before Oct. 15, 2019 as a negative factor in the totality of the
applicant’s circumstances but will not consider such receipt a heavily weighted
negative factor, regardless of the duration of past receipt.
A. The final rule changes
the definitions for public charge and public benefits, and changes
the standard that DHS uses when determining whether an alien is
likely to become a “public charge” at any time in the future and is therefore
inadmissible and ineligible for admission or adjustment of
status.
In limited circumstances, and in USCIS’
discretion, an alien who wants to adjust their status may post a bond
and obtain adjustment of status, despite being determined inadmissible on
public charge grounds. The final rule sets the minimum bond amount at $8,100;
the actual bond amount would be dependent on the alien’s circumstances. In
addition, in certain circumstances, an alien may obtain a waiver of
the public charge ground of inadmissibility.
The rule also
makes nonimmigrants who have received, since obtaining the
nonimmigrant status they are seeking to extend or from which they are seeking
to change, designated public benefits for more than 12 months in the
aggregate within any 36-month period generally ineligible for change of status
and extension of stay.
A. Unless specifically exempted by
Congress, aliens seeking immigrant or nonimmigrant visas abroad; aliens seeking
admission to the United States on immigrant or nonimmigrant visas; and aliens
seeking to adjust their status to that of a lawful permanent resident from
within the United States are subject to the public charge ground of
inadmissibility.
While most lawful permanent residents are
not subject to inadmissibility determinations, including public charge
inadmissibility, upon their return from a trip abroad, some lawful permanent
residents can be subject to the public charge ground of inadmissibility because
specific circumstances dictate that they be considered applicants for
admission.
A. Congress
has exempted certain classes of immigrants from the public charge ground of
inadmissibility. For instance, refugees, asylees, and Afghans and Iraqis with
special immigrant visas are exempt from public charge
inadmissibility. This rule includes provisions clarifying the classes of
individuals who are exempt from this rule, as well as those who are able to
obtain a waiver of public charge inadmissibility.
A. DHS will only consider public
benefits as listed in the rule:
·
Any
federal, state, local, or tribal cash assistance for income
maintenance
·
Supplemental
Security Income (SSI)
·
Temporary
Assistance for Needy Families (TANF)
·
Federal,
state or local cash benefit programs for income maintenance (often called
“General Assistance” in the state context, but which may exist under
other names)
·
Supplemental
Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
·
Section
8 Housing Assistance under the Housing Choice Voucher Program
·
Section
8 Project-Based Rental Assistance (including Moderate
Rehabilitation)
·
Public
Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437
et seq.
·
Federally
funded Medicaid (with certain exclusions)
This rule also clarifies that DHS will not
consider the receipt of designated public benefits received by an alien who, at
the time of receipt, or at the time of filing the application for admission,
adjustment of status, extension of stay, or change of status, is enlisted in
the U.S. armed forces, or is serving in active duty or in any of the Ready
Reserve components of the U.S. armed forces, and will not consider the
receipt of public benefits by the spouse and children of such service
members. The rule further provides that DHS will not consider public
benefits received by children, including adopted children, who will acquire
DHS also will not
consider:
1.
The
receipt of Medicaid for the treatment of an emergency medical
condition;
2.
Services
or benefits funded by Medicaid but provided under the Individuals
with Disabilities Education Act;
3.
School-based
services or benefits provided to individuals who are at or below the oldest age
eligible for secondary education as determined under state or local
law;
4.
Medicaid
benefits received by an alien under 21 years of age; or
5.
Medicaid
benefits received by a woman during pregnancy and during the 60-day
period beginning on the last day of the pregnancy.
The final rule also clarifies that DHS
will only consider public benefits received directly by the applicant for the
applicant’s own benefit, or where the applicant is a listed beneficiary of the
public benefit. DHS will not consider public benefits received on behalf of
another as a legal guardian or pursuant to a power of attorney
for such a person. DHS will also not attribute receipt of a public benefit by
one or more members of the applicant’s household to the applicant, unless
the applicant is also a listed beneficiary of the public benefit.
A. The final rule includes a single
duration-based threshold for the receipt of public benefits as part of the
definition of public charge. The final rule considers an alien a
public charge if he or she receives public benefits for more than 12 months in
the aggregate in any 36-month period, such that the receipt of two benefits in
one month counts as two months.
However, because
a public charge inadmissibility determination is prospective in nature, in the
totality of the circumstances, any duration (and amount) of public
benefits received may be considered in the totality of the
circumstances.
USCIS will also
consider whether an alien seeking an extension of stay or change of status has
received, since obtaining the nonimmigrant status he or she seeks to extend or
from which he or she seeks to change, public benefits for more than 12 months
in total in any 36-month period (such that, for
instance, the receipt of two benefits in one month counts as two
months).
A. Under the
rule, DHS will only consider the direct receipt of benefits
by an alien for the alien’s own benefit, or where
the alien is a listed beneficiary of a public benefit. DHS will not
consider public benefits received on behalf of another as a legal guardian or
pursuant to a power of attorney for such a person. DHS will also not attribute
receipt of a public benefit by one or more members of
the alien’s household to the applicant unless the applicant is also a
listed beneficiary of the public benefit. Similarly, any income derived from
such benefits received by other household members will not be considered as
part of the applicant’s household income.
A. The list of public benefits in the
rule is exhaustive with respect to non-cash benefits. However, cash
benefits for income maintenance may include a variety of general purpose
means-tested cash benefits provided by Federal, state, local, or tribal benefit
granting agencies. Any benefits not listed not in the rule are excluded
from consideration. Notably, the rule does not include consideration of
emergency medical assistance, disaster relief, national school lunch programs,
foster care and adoption, student and mortgage loans, energy assistance, food
pantries and homeless shelters and Head Start. In addition, DHS will not
consider, as part of a public charge inadmissibility determination, public
benefits received by noncitizen members of the
1.
The
receipt of Medicaid for the treatment of an emergency medical
condition;
2.
Services
or benefits funded by Medicaid but provided under the Individuals
with Disabilities Education Act;
3.
School-based
services or benefits provided to individuals who are at or below the oldest age
eligible for secondary education as determined under state or local
law;
4.
Medicaid
benefits received by an alien under 21 years of age; or
5.
Medicaid
benefits received by a woman during pregnancy and during the 60-day
period beginning on the last day of the pregnancy.
A. Under the final rule, “likely at
any time to become a public charge” means more likely than not at any time in
the future to become a public charge (in other words, more likely than not at
any time in the future to receive one or more of the designated public benefits
for more than 12 months in the aggregate within any 36-month period, such
that, for instance, receipt of two benefits in one month counts as two
months).
Under this final rule, inadmissibility
based on the public charge ground is determined by looking at the factors set
forth in 8 CFR 212.22 and making a determination of the applicant’s likelihood
of becoming a public charge at any time in the future based on the totality of
the circumstances. This means that the adjudicating officer must weigh both the
positive and negative factors when determining whether someone is more likely
than not at any time in the future to become a public charge. As required
by section 212(a)(4) of the Act, and this final rule, when making a public
charge inadmissibility determination, a USCIS officer must consider the
applicant’s:
·
Age;
·
Health;
·
Family
status;
·
Assets,
resources, and financial status;
·
Education
and skills;
·
Prospective
immigration status;
·
Expected
period of admission; and
·
Sufficient
Form I-864, when required under section 212(a)(4)(C) or (D) of the INA.
A. The
following factors will generally weigh heavily in favor of a finding that an
alien is likely at any time to become a public charge:
·
The
alien is not a full-time student and is authorized to work but cannot show
current employment, recent employment history, or a reasonable prospect of
future employment.
·
The
alien has received, or has been certified or approved to receive, one or more
public benefits for more than 12 months in the aggregate within any 36-month
period, beginning no earlier than 36 months before the alien applied for
admission or adjustment of status on or after Oct. 15, 2019.
·
The
alien has been diagnosed with a medical condition that is likely to require
extensive medical treatment or institutionalization or that will interfere with
his or her ability to provide for him or herself, attend school, or work and he
or she is uninsured and has neither the prospect of obtaining private health
insurance nor the financial resources to pay for reasonably foreseeable medical
costs related to a medical condition.
·
The
alien has previously been found by an immigration judge or the Board of
Immigration Appeals to be inadmissible or deportable based on public
charge grounds.
A. The following factors would weigh
heavily against a finding that an alien is likely to become a public
charge:
·
The
alien has household income, assets, resources, and support from a sponsor,
excluding any income from illegal activities or from public benefits, of at
least 250% of the Federal Poverty Guidelines for his or her household
size.
·
The
alien is authorized to work and is currently employed in a legal industry with
an annual income of at least 250% of the Federal Poverty Guidelines for a
household of his or her household size.
·
The
alien has private health insurance appropriate for the expected period of
admission, so long as the alien does not receive subsidies in the
form of premium tax credits under the Patient Protection and Affordable Care
Act to pay for such health insurance.
https://www.uscis.gov/legal-resources/final-rule-public-charge-ground-inadmissibility