On August 14, the U.S. Department of Homeland Security (DHS) published the Final Rule on the public charge inadmissibility ground, which amends the regulations for section 212(a)(4) of the Immigration & Nationality Act (INA).
Highly controversial and several months in the making, the Final Rule gives U.S. Citizenship & Immigration Services (USCIS) more discretionary power to deny Form I-485, green card requests, and Form I-129 and Form I-539 applications to change status or extend status, on the public charge ground.
The new rule is set to take effect on October 15, 2019, i.e. 60 days after its publication.
[UPDATE: A temporary injunction — resulting from federal court litigation – delayed the implementation for USCIS. The new rule is set to take effect on February 24, 2020, and will apply to all applications/petitions to USCIS that are postmarked on or after that date.]
It will affect applications filed (received by the agency) or postmarked on or after the implementation date. The U.S. Department of State (DOS) is expected to further revise the Foreign Affairs Manual (FAM) to incorporate DHS’ new public charge rule.
[UPDATE, February 2020: On January 27, 2020, the U.S. Supreme Court, in a 5-4 vote, lifted the temporary injunction that stopped USCIS from implementing the new public charge rule, while litigation over its legality continues. Earlier, on October 11, 2019, federal judges in three separate cases enjoined USCIS from enforcing the rule and postponed the effective date until there is final resolution in the cases. With the latest U.S. Supreme Court ruling, USCIS may now enforce the Final Rule nationwide.]
[UPDATE, August 2020: On July 29, 2020, the U.S. District Court for the Southern District of New York enjoined the DHS from enforcing, applying, implementing, or treating as effective the new public charge rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. The nationwide injunction temporarily blocks the implementation of the February 2020 Public Charge Rule. In the interim, USCIS will apply the old 1999 Public Charge Rule to Form I-485, I-129 and I-539 applications filed on or after July 29, 2020.]
Public Charge Inadmissibility Ground Under Section 212(a)(4)
The long-existing section 212(a)(4)(A) makes a person inadmissible to the U.S. if he or she is “likely at any time to become a public charge.” Whether a person is barred from the U.S. on public charge ground depends on the totality of the circumstances.
Section 212(a)(4)(B) of the INA instructs USCIS and U.S. consular officers to consider the following factors:
- Family status
- Assets; resources; and financial status
- Education and skills
The Form I-864, Affidavit of Support, from the petitioner (sponsor) or joint sponsor is also an important factor to consider in certain immigrant visa or green card cases.
The statute does not define “public charge.” But since 1999, USCIS and DOS guidelines have defined it to mean a person who is or is likely to become “primarily dependent” on the U.S. government for subsistence, as shown by the receipt of “public cash assistance for income maintenance” or “institutionalization for long-term care at government expense.”
There is no waiver for immigrants ineligible under INA 212(a)(4). While a waiver is legally allowed for nonimmigrants ineligible under INA 212(a)(4), consular officers generally do not recommend such waivers as a matter of policy, especially when the visa in question requires non-immigrant intent under INA 214(b).
The 2019 Final Rule involves a new definition of public charge and includes 3 key changes:
1) Expands the range of public benefits that may be considered when determining whether applicants who have received or are currently receiving benefits are inadmissible on public charge ground.
Under the Final Rule, public benefits are no longer limited to mean cash assistance programs, such as Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance. The term “public benefit” has expanded to include previously excluded programs, such as:
- Federally funded Medicaid (with certain exclusions, e.g. receipt of Medicaid for emergency care; services funded by Medicaid but provided under the Individuals with Disabilities Education Act; school-based services provided to persons who are at or below the oldest age eligible for secondary education as defined by state or local law; Medicaid benefits received by a person under age 21; and Medicaid benefits received by pregnant women and women for up to 60 days after giving birth.)
- 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.
2) Creates a single duration-based threshold for the receipt of public benefits as part of the definition of public charge.
The Final Rule notes that an applicant is a public charge if he or she receives one or more public benefits for more than 12 months in the aggregate within any 36-month period. USCIS notes, for example, the receipt of two benefits in one month counts as two months.
The rule applies not only to green card or immigrant visa applicants. It also requires applicants seeking a change or extension of nonimmigrant status to show they have not (since initially obtaining the status) received public benefits for more than 12 months in total in any 36-month period.
Any duration (and amount) of public benefits received may be considered in the totality of the circumstances test. Adjudications officers will only consider benefits received by the applicants and will not take into account benefits used by their children or other family members.
3) Defines “heavily weighted positive factors” that reduce the likelihood of becoming a public charge and “heavily weighted negative factors” that increase the likelihood of becoming a public charge.
Among the heavily weighted negative factors is having received or been approved to receive one or more public benefits for more than 12 months in total within the 36-month period prior to applying for admission to the U.S., a green card, or a status change or extension.
Other negative factors include being younger or older than working age; having a health condition that is likely to require extensive treatment and lacking private health insurance or the means to pay medical costs; having limited income or resources; not being employed, a full-time student or a primary caregiver; previously found inadmissible on public charge grounds; and using or previously using public benefit programs.
Heavily weighted positive factors include the applicant’s household has financial assets or resources of at least 250% of the federal poverty level, or the applicant earns an income of at least 250% of the federal poverty level for the household size.
Other positive factors are the applicant is authorized to work, is gainfully employed, and has private health insurance that is not subsidized by the Patient Protection and Affordable Care Act.
The shift toward the weighing of positive factors and negative factors means the Form I-864, Affidavit of Support, can no longer be relied on as sufficient proof – by itself – to demonstrate the applicant would not become a public charge in immigration cases that require the Affidavit of Support.
Introduction of Form I-944, Declaration of Self-Sufficiency
USCIS introduced the new Form I-944, Declaration of Self-Sufficiency, which collects information on the applicant’s family status; assets, resources and financial resources; and education and skills. More information is in the Form I-944 instructions.
When the Final Rule goes into effect, Form I-485 adjustment of status/green card applicants will need to submit a completed Form I-944 with supporting documents. Applicants requesting a change or extension of status through a Form I-129 or Form I-539 may also have to file a completed Form I-944 if USCIS elects to require one in a Request for Evidence.
[UPDATE, January 2020: Starting on February 24, 2020, the U.S. Department of State (DOS) will implement the Final Rule and may require Immigrant Visa applicants and K-1 visa applicants to complete the Form DS-5540, Public Charge Questionnaire. This form requests information on the visa applicant’s household size and income, assets, liabilities, education, job skills, health, and receipt of public benefits. Read the Form DS-5540 instructions for more information.
[UPDATE, August 2020: A nationwide injunction from the U.S. District Court for the Southern District of New York enjoined the DHS from enforcing the February 2020 Public Charge rule in response to the COVID-19 outbreak. In the interim, Form I-485 applications that are filed on or after July 29, 2020 do not have to be accompanied by the Form I-944.]
Posting of Public Charge Bonds
Section 213 of the INA provides for the posting of a public charge bond in cases where applicants need to demonstrate they will not become a public charge. The Final Rule states that applicants who are initially found likely to become a public charge by USCIS may be offered the opportunity to post a public charge bond of at least $8,100.
The bond may be terminated only upon the immigrant’s death, permanent departure from the United States, five years as a lawful permanent resident, or naturalization. The bond will be breached if the immigrant receives public benefits for more than 12 months in total within any 36-month period.
Statutory Exemptions Still Apply
Congress exempted certain classes of immigrants from the public charge inadmissibility ground. The Final Rule includes provisions recognizing the classes of individuals who are exempt, e.g. refugees, asylees, widow(er)s of U.S. citizens, VAWA self-petitioners, and Afghans and Iraqis with special immigrant visas.
2019 Final Rule Will Add Complexities
The public charge inadmissibility ground applies to persons requesting admission to the United States as an immigrant or nonimmigrant. It does not apply to permanent residents filing for naturalization (Form N-400) or to conditional permanent residents applying to remove the conditions on their residence (Form I-751).
When possible, persons who are seeking to adjust to permanent resident status or extend or change status should file their applications before the new public charge rule goes into effect.
The new Public Charge Rule gives adjudications officers broader discretionary power in determining whether a person is inadmissible on the public charge ground. This will likely to increase processing times, create confusion over eligibility and filing requirements, and add complexities in applications, especially during the initial stages of implementation.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
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