New Public Charge Rule IS Effective Oct. 15 – PART I
The Department of Home Security (DHS) has published a new public charge rule that dramatically changes the standard of whether an applicant for admission to the U.S. or for adjustment of status is likely to become a “public charge.” “Public charge” is not defined in the immigration law, but since 1999, the term has meant a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionaliz[ed] for long-term care at government expense.” The rule takes effect on Oct. 15, 2019, unless lawsuits already filed stop its implementation.
The rule is significant and is expected to result in an increase of denials for both immigrants and nonimmigrants. It is expected to deter persons from seeking benefits for which they are eligible, even if they are exempt from this public charge rule, because of the fear it could disqualify them for permanent residency or a visa.
Specifically, the rule affects persons seeking admission to the U.S. who could be deemed “inadmissible” by determining whether they are “more likely than not at any time in the future” – a forward looking test – to become a public charge. These persons include: adjustment of status applicants, nonimmigrants being inspected for admission to the United States at a port of entry (POE); persons with an immigrant visa at a POE; lawful permanent residents (LPRs) returning to the United States after six months or more; and persons who are seeking admission after entering without inspection.
For nonimmigrants seeking either a change or extension of status, U.S. Citizenship and Immigration Services (USCIS) will be looking at whether the beneficiary received in the past – a backward looking test – one or more public benefits, as defined in the regulation “for more than 12 months in the aggregate within any 36-month period” before USCIS adjudicates the change or extension of status request.
The new rule is not supposed to affect LPRs applying for citizenship through naturalization.
Changed Standard for Admissibility
The rule defines “public charge” and “public benefit” by using a totality of circumstances approach for making a public charge inadmissibility determination that weighs the foreign national’s age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors. Some factors will be more heavily weighed than others.
Public Benefits Specified
The relevant public benefits specified in the new rule are:
• Any federal, state, local, or tribal cash assistance for income maintenance, including:
• Social Security Income (SSI);
• Temporary Assistance for Needy Families (TANF);
• Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the state context, but which also exist under other names);
• Supplemental Nutrition Assistance Program (SNAP);
• Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD;
• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
• Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
• Public housing under section 9 of the U.S. Housing Act of 1937.
It is important to note the effective date of the rule is Oct. 15, and should not be applied until then. USCIS should not consider it to be a negative factor if the person received the relevant benefits prior to the rule’s effective date, with the exception of cash assistance and long-term institutionalization benefits that DHS already considers relevant to the public charge determination under current policy. Therefore, it is expected that pending applications prior to the effective date should not be affected or adjudicated under the new rule.
New Form I-944, Declaration of Self-Sufficiency
Adjustment of status applicants will need to submit a new Form I-944, Declaration of Self-Sufficiency, along with Form I-864 Affidavit of Support. The new rule does not remove the Form I-864 from the filing requirements, as the I-864 is a factor in USCIS’s public charge analysis.
Form I-944 will contain the information regarding the additional factors to be considered by USCIS. USCIS officers will now consider the I-944 factors as well as a sufficient Form I-864. If USCIS makes a public charge determination against the applicant, there is now a public charge bond application, Form I-945, where USCIS can issue at a minimum a $8,100 bond so that the applicant can be admitted.
While nonimmigrants are not required to submit a Form I-944, there will be a new question on both Forms I-129 and I-539 about receipt of public benefits as a nonimmigrant as of the date of filing and through adjudication.
To be continued …
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email firstname.lastname@example.org