Department of Homeland Security's Final Rule on Public Charge

UPDATE: On Monday, January 27, 2020 the U.S. Supreme Court, by a 5-4 vote, lifted a preliminary injunction issued by a federal district judge in New York that had blocked the Trump Administration’s public charge rule. Following the Court Order, the US Citizenship and Immigration Services (USCIS) announced on January 30, 2020 that it will begin implementing the Public Charge final rule on February 24, 2020. Except for Illinois, the final rule will apply only to applications and petitions postmarked (or if applicable, submitted electronically) on or after Feb. 24, 2020. The other nationwide preliminary injunctions issued by the lower federal courts in California, Washington and Maryland were stayed by the federal appeals courts in early December. Only the statewide injunction issued by the lower federal court in Illinois remains in place. As a result, the USCIS is enjoined from enforcing public charge rule in Illinois and can only implement the final rule in 49 States. If the injunction in Illinois is lifted, USCIS will provide additional public guidance.

The Department of State’s rule on Public Charge continues to be on hold at this time. Furthermore, the U.S. government continues to be blocked from implementing the Presidential Proclamation on Healthcare by a preliminary injunction issued by the US District Court in Oregon on November 26, 2019.

The DHS’ Final Rule on Public Charge released in August 2019 will supersede the 1999 agency guidance outlined above. This rule was set to take effect on October 15, 2019. However, as noted above, the DHS was blocked from implementing the Final Rule by a nationwide preliminary injunction issued by federal district court in New York on October 11, 2019. The order by the district court blocks DHS and USCIS from "enforcing, applying or treating as effective, or allowing persons under their control to enforce, apply, or treat as effective, the Rule, and enjoins DHS from "Implementing, considering in connection with any application, or requiring the use of any new or updated forms whose submission would be required under the Rule.” The Court further stated that "if this Order is later terminated and the Rule goes into effect, the Rule's stated effective date of October 15, 2019, as well as any references in the Rule to October 15, 2019... shall be replaced with a date after this Order is terminated." Shortly after the order by the district court in New York, other federal district courts similarly issued preliminary injunctions on the enforcement of the rule: California (limited to the State), Washington (applied to 13 States), Illinois (limited to the State) and Maryland (nationwide). The challengers in the federal lawsuits, which include States, local governments and advocacy groups, claim that the redefinition of public charge exceeds DHS’ statutory authority and was promulgated in an arbitrary and capricious manner in violation of the Administrative Procedure Act (APA). In addition, they claim that the rule discriminates against individuals with disabilities in violation of the Rehabilitation Act of 1973, as well as violates the Equal Protection Clause of the Constitution. Until there is final resolution in these cases, the current DHS public charge policy under the 1999 guidance will be enforced. If and when DHS and USCIS implements the Public Charge Final Rule, only applications or petitions filed on or after the effective date will be subject to the new requirements.

New Definition of Public Charge

If implemented, the Final Rule will dramatically change the public charge ground of inadmissibility in meaning and in scope. Rather than include only those who are “primarily dependent” on the government for subsistence, DHS now proposes to define a public charge as an applicant or foreign national who receives 12 months of public benefits such Medicaid and SNAP/Food Stamps over any 36-month period (receiving two types of benefits in one month would count as receiving benefits for two months). The analysis will shift to a preponderance of the evidence standard and grant increased discretion to immigration officers when determining if a foreign national is “more than likely to” receive a public benefit for a designated duration at any time in the future. Furthermore, the Rule significantly expands the public benefits that are included in this determination to include non-cash benefits such as the Supplemental Nutrition Assistance Program (“SNAP”), Medicaid, and housing assistance programs.,. The Final Rule will also expand the class of foreign nationals subject to ground of inadmissibility to employment-based green card applicants as well as certain nonimmigrant foreign workers.

Who will the Final Rule apply to?

Unless specifically exempted, the public charge ground of inadmissibility will apply to both family-based and employment-based green card applicants. In addition, the Final Rule will expand the public charge ground of inadmissibility to foreign nationals within the United States who hold a nonimmigrant visa and seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification. Similar to current policy, the Final Rule will not apply to I-751 petitions or N-400 applications. However, please note that while the new rule will not be applied retroactively, it will apply to green card holders who are returning to the United States after being abroad for more than 180 days as these green card holders are considered as applicants applying for readmission.

What public benefits will be considered under the Final Rule?

The Final Rule will expand public benefits to include non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), food stamps; Medicaid; and housing vouchers and other housing subsidies that are not currently considered under DHS policy. Similar to current policy, DHS will not consider receipt of non-cash benefits, or any “earned” benefits such as unemployment, Social Security or paid family/maternity leave from the State.

Note that only public benefits received by, or applied or certified for, the foreign national applying to adjust status will be considered under the Final Rule. Public benefits received by family members are not counted against the foreign national for public charge purposes unless the public benefits amount to the sole support of the family.

How will be the Final Rule be Implemented?

For adjustment of status cases, all family-based and employment-based applicants will be required to file a Form I-944, Declaration of Self-Sufficiency (in addition to an Affidavit of Support if family-based). Applicants will need to disclose the receipt of any public benefit and submit evidence to establish that they are not likely to become a public charge, including an IRS tax transcript for the most recent tax year, credit report(s), proof of asset-ownership such as a real estate appraisal from a licensed appraiser, copies of policy pages for all health insurance policies, or documentation that the applicant has enrolled, and any documentation that may outweigh any negative factors related to a medical condition. To determine if an applicant is more likely than not to receive a public benefit, DHS will apply a more complex totality of circumstances test. The Final Rule provides the following set of standards to scrutinize the applicant’s age, health, family status, assets, resources, and financial status, and education and skills, that appear mainly tied to the ability to work:

While no single factor will determine whether an applicant is a public charge, the Final Rule provides heavily weighted negative and positive factors to consider in the determination. Negative factors include an applicant who is not a full time student and has the ability to work but has no current employment, receipt of public benefits, as well as the diagnosis of a medical condition that is likely to require extensive medical treatment and the applicant is uninsured or does not have the financial resources to pay for foreseeable medical costs. Heavily weighted positive factors include having a household income at or above 250% of the federal poverty guidelines, current employment and private health insurance. Unlike the current DHS public charge policy, the submission of an Affidavit of Support will no longer sufficiently overcome any negative factors in a public charge determination for family-based green card cases. As instructed by the Final Rule, DHS will only consider the Affidavit of Support as part of the totality of the circumstances test and will scrutinize whether the evidence shows that the sponsor will actually provide the financial support as legally obligated under the contract.

Application of Final Rule to Certain Nonimmigrants

Under the Final Rule, nonimmigrants seeking extension of stay or change of status within the United States will be subject to the public charge ground of inadmissibility. The standard for determining public charge in these cases is retrospective, rather than prospective. If the nonimmigrant has received, since obtaining the nonimmigrant status he or she seeks to extend or change, public benefits for more than 12 months in total in any 36-month period, the nonimmigrant will be a deemed a public charge and the petition will be denied. If the Final Rule is implemented, USCIS will release updated forms (I-129 and I-539) that will include a section on public charge where foreign nationals must disclose the receipt of any public benefits.

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