DHS Publishes Final Rule Expanding Public Charge Ground of Inadmissibility

Effective October 15, 2019, unless halted by litigation, the standard by which a foreign national is determined to be “likely at any time to become a public charge” (and consequently inadmissible to the U.S.) will drastically change.

Old Definition and Application of Public Charge

Previously, a “public charge” involved situations where a foreign national was “primarily dependent on the government for subsistence as demonstrated by either (i) receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Furthermore, sponsorship via an affidavit of support (filed on Form I-864) would generally prevent a foreign national from being considered a public charge. 

New Definition and Application of Public Charge

Under the new rule announced by the Department of Homeland Security (“DHS”) on August 14, 2019, “a public charge is [a foreign national] who receives one or more public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two public benefits in one month counts as two months).” Specified benefits include “cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing.”

A foreign national may be determined to be inadmissible on public charge grounds during the course of an application for benefits such as:

  • a nonimmigrant visa application;

  • a nonimmigrant[1] change or extension of status;

  • an application for adjustment of status or immigrant visa; and/or

  • an application for admission to the U.S., including Permanent Residents or “green card” holders who are determined to have abandoned their residency.[2]

The new rules affect both family-based and employment-based applications.  Applications already pending before the effective date of the rule will not be affected.      

Whether a foreign national will prospectively be determined likely to become a public charge will now be tested under a totality of the circumstances. As such, an affidavit of support alone might not be sufficient to demonstrate that that a foreign national is admissible. Instead, factors to be considered in the course of an adjudication of an application for immigration benefits will include: prior receipt of public benefits above the threshold, acquisition of private health insurance, household assets, household income, and the foreign national’s education and skills. Adjustment of status applicants who have received the specified public benefits will be required to submit a Form I-944 Declaration of Self Sufficiency along with their Form I-485 applications.[3] 

Relatedly, the Department of State’s Foreign Affairs Manual was updated in January 2018 to reflect some changes to the public charge determination. Consequently, these new adjudication standards are already affecting consular decisions. To illustrate the impact: 1,033 immigrant visas were denied on public charge grounds in fiscal year 2016 compared to 12,179 denials on public charge grounds from October 1, 2018 to July 29, 2019. The Department of State may make further changes to its policy to align more closely with DHS’s new rule.

Ultimately these changes to public charge determinations vest significant discretion in USCIS adjudicators, CBP officers, and Department of State consular officers, potentially leading to inconsistent or unpredictable determinations, and sets the stage for further increases in case processing times and risk of denied applications. 

[1] Regarding nonimmigrant applications for extensions of changes of status, the rule notes “DHS will only consider whether the [foreign national] has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they wish to extend or change, up until the time of adjudication of the extension of stay or change of status request.”

[2] Generally, the new rule would not affect applications for naturalization; however, whether the applicant was properly admitted or adjusted as a lawful permanent resident may be reviewed in the course of a naturalization application.  

[3] Applicants who would traditionally submit only a Form I-864 may also be required to submit a Form I-944. Failure to submit a form when required may result in a denial without a Request for Evidence; if a denial leaves a person without an underlying status, removal proceedings may be initiated. 

© Jewell Stewart & Pratt PC 2019