The New USCIS Public Charge Rule

FEBRUARY 3, 2020 UPDATE: USCIS has announced that it will be implementing the Inadmissibility on Public Charge Grounds final rule (except in Illinois) and applying it to all petitions and applications filed with USCIS on or after February 24, 2020.

When determining whether an alien is likely to become a public charge at any time in the future, USCIS will ONLY consider an alien’s application for, certification or approval to receive, or receipt of certain non-cash public benefits on or after February 24, 2020. Thus, any benefits received before this date will not be considered in the public charge determination.

The question of whether someone is likely to become a public charge is usually considered when an alien is applying to become a permanent resident (get a Green Card) or when applying for certain non-immigrant or other temporary benefits, such as, by filing an application for an extension of stay within the U.S. It should be noted that the public charge final rule DOES NOT apply to permanent residents who are applying for Naturalization.

There are certain groups of people who are either completely exempt from the public charge rule, or may apply for a waiver for public charge when applying for a Green Card or other benefits with USCIS. These include:

1. Refugees
2. Asylum applicants
3. Refugees and asylees applying for adjustment to permanent resident status
4. Amerasian Immigrants
5. Individuals granted relief under the Cuban Adjustment Act (CAA) or NACARA
6. Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA)
7. Individuals applying for a T Visa or a U Visa
8. Individuals with T visas or U visa and are trying to become a permanent resident
9. Applicants for Temporary Protected Status (TPS)
10. Certain applicants under the LIFE Act Provisions

August 20, 2019 – Original Blog Post. On August 12, 2019, the United States Department of Homeland Security (DHS) published a final “public charge” rule for inspection which will dramatically expand the discretionary authority of DHS to deny immigrants green cards and admission to the U.S. based upon their income levels and their past use of certain government benefits. While DHS claims that the rule will ensure that immigrants are self-sufficient and can rely on their own capabilities and resources, the reality is that this public charge rule will serve as a bar to many otherwise eligible immigrants and will have the effect of discriminating based upon (low) income and (low) socio-economic status. The rule was released on August 14, 2019, and is scheduled to take effect 60 days later, on October 15, 2019.

The final rule amends DHS regulations by prescribing how DHS will determine whether an alien is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act. The final rule addresses U.S. Citizenship and Immigration Services (USCIS) authority to permit an alien to submit a public charge bond in the context of adjustment of status applications. The rule also makes nonimmigrant aliens who have received certain public benefits above a specific threshold generally ineligible for an extension of stay and change of status.

DHS has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received, which the Department believes will better ensure that applicants subject to the public charge inadmissibility ground are self-sufficient. The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

More specifically, receipt of any of the following public benefits will be considered under the new public charge rule:

• Any federal, state, local, or tribal cash assistance for income maintenance, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), Federal, state, or local cash benefits programs for income maintenance.
• 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

The regulation also excludes from the public benefits definition:

• Emergency medical assistance
• Disaster relief
• National school lunch programs
• Foster care and adoption
• Student and mortgage loans (including Pell Grants and other student aid programs)
• Energy assistance
• Food pantries and homeless shelters; and
• Head Start

In addition, this regulation DOES NOT apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others.

This rule also makes certain nonimmigrant aliens in the United States who have received designated public benefits above ineligible for change of status and extension of stay if they received the benefits since obtaining the nonimmigrant status they seek to extend or from which they seek to change. This change is important for all non-immigrants who will be seeking to extend or change their non-immigrant status AFTER October 15, 2019, as any applicants filing to extend or change their status after this date will have to file using the new I-129 and I-539 Applications which have been revised to reflect the new public charge rule.

This rule also explains how USCIS will exercise its discretionary authority, in limited circumstances, to offer an alien inadmissible only on the public charge ground the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.

Note that the new public charge rule will only be applied to future applications and petitions that are filed on or after the effective date of October 15, 2019. Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on prior Guidance, which has been in effect since 1999.

This rule is another brick in the “invisible wall” that has been erected by the Trump Administration and the end result is that it grants additional broad discretionary powers to USCIS adjudicators to deny applications for immigrants and non-immigrants. Ultimately, this rule will wind up discriminating against low-income earners and it will have the effect of punishing individuals and families who received public benefits in their time of need. When the rule is fully implemented, it may prevent large numbers of hard-working and law-abiding people who are already in the U.S. from obtaining green cards or from extending or changing their non-immigrant status.

If you have questions about the new public charge rule and whether it may apply to you, contact South Florida Immigration Lawyer Sean D. Hummel at sean@hummelaw.com or (954) 385-3111 to schedule a consultation.

Special Note. The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented in this blog to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced U.S. Immigration Lawyer.