As previously posted, on Monday, January 27, 2020, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against the administration’s public charge rule, which cleared a path for the Department of Homeland Security (“DHS”) to implement the public charge rule within the United States starting on February 24, 2020.
The new rule drastically changes 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.), and affects not only family-based but also employment-based filings.
As background, 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]
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, and employment-based immigrants were usually exempt from I-864 requirements.
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.”
However, even if no such benefits have been received in the past, with the exception of nonimmigrant change or extension of status applications, the new rule requires an additional inquiry to ensure that the foreign national will not in the future become a public charge, or a “totality of the circumstances” test. Under this test, an affidavit of support is only one factor that will be reviewed. Instead, factors to be considered in the course of an adjudication of an application for immigration benefits will include: 1) age and employability; 2) health and whether the applicant has a medical condition and insurance; 3) family status (household size); 4) assets, resources, and financial status; 5) education and skills (employability); 6) prospective immigration status and period of admission; and 7) affidavit of support (Form I-864). Adjustment of status applicants in both the family-based and employment-based context will now be required to submit a Form I-944 Declaration of Self Sufficiency and extensive supporting documents along with their Form I-485 applications.[3]
Relatedly, the Department of State has changed its policy manual, the Foreign Affairs Manual, to align more closely with DHS’s new rule. For applications with the Department of State, such as consular processing a permanent residence application, the new Form DS-5540 must be completed upon request.
As the various agencies update operating instructions and procedures surrounding the public charge rule to implement the rule into everyday practice, these requirements may change or evolve.
[1] Regarding nonimmigrant applications for extensions or 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 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 will 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 2020