Public Charge Final Rule to be implemented on February 24, 2020

On January 27, 2020, the U.S. Supreme Court overturned a lower court injunction and ruled that the Trump administration can implement its Public Charge final rule (the Rule) which seeks to deny immigration benefits to immigrant applicants that the government deems likely to rely on public benefits. As such, USCIS announced that it will be implementing the Rule and applying it to certain applications and petitions for U.S. immigration benefits filed with USCIS on or after February 24, 2020. Notably, the Rule is NOT retroactive and will not be applied to any applications filed before this date.

Under the Rule, an alien will be deemed inadmissible on the public charge ground if an Immigration officer finds that the alien is “likely at any time to become a public charge.” This determination will be made at the time the alien files an application for admission or for adjustment of status and will be both retrospective (looking back in time) to examine whether the applicant has received public benefits in the past 3 years, and prospective, examining whether the applicant is likely to become a public charge in the future.

While the “likely at any time to become a public charge” standard is a common feature of U.S. immigration law and inadmissibility, what is new here is that this provision is now being enforced on a prospective forward-looking basis and Immigration officers will be granted full authority to make a predictive assessment that is based on factors that are supposed to show whether an alien would need public assistance and support in the future, based on past and present factors.

If, based upon a totality of the circumstances and an evaluation of these factors, it is determined that an alien applicant is likely to become a public charge, then the alien will be deemed inadmissible on this ground and the application may be denied.

There are certain groups of people who are either completely exempt from the Rule, or may apply for a waiver of the public charge ground of inadmissibility, including:

• Refugees and Asylum applicants
• VAWA self petitioners
• Amerasian Immigrants
• Individuals granted relief under the Cuban Adjustment Act (CAA), NACARA, and the Haitian Refugee Immigration Fairness Act
• Individuals applying for a T Visa or a U Visa, or who have T or U visas and are applying for permanent residence
• Applicants for Temporary Protected Status (TPS)
• Certain applicants under the LIFE Act Provisions

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. This means that all immigrants who file I-485 applications for adjustment of status, or nonimmigrants who file I-539 applications for extension of stay, on or after February 24, 2020 can expect that they will be subjected to the Public Charge final rule.

However, the public charge standard that will be applied to nonimmigrant applicants for an extension of stay or change of status (using Form I-539) will be different, since, technically, these applicants are not applying for a visa, admission or adjustment of status. As such, the Rule will only be applied retrospectively to these nonimmigrant applicants who are applying for an extension of stay or change of status, meaning that USCIS will only look at whether the applicant has received public benefits for 12 or more months during any 36 month period while the nonimmigrant was in the actual nonimmigrant status which he or she is seeking to extend or change.

In addition to examining whether the applicant has applied for or received certain public benefits, Immigration Officers will be assessing certain “Totality of Circumstances” factors to make the public charge determination, including:

The AGE of the applicant: whether the applicant is of employable age and whether age makes him or her less likely to be employable. Ages 18 to “early retirement age are viewed as positive”. This means that ages 1-17 and 65 and older may be viewed negatively.

The HEALTH of the applicant: whether the applicant has a medical condition that impacts his or her ability to care for himself or herself, to attend school, or to work upon admission or adjustment of status.

The FAMILY STATUS of the applicant: Whether the applicant has a LARGE household size. Presumably the smaller the household size the less likely this factor will indicate likelihood of becoming a public charge.

ASSETS, RESOURCES, and FINANCIAL STATUS of the applicant: Whether the applicant’s household income is at or above 125% of the federal poverty guidelines. If the household income is less, whether the alien has sufficient assets in which cash value exceeds 3 times the difference for aliens who are immediate relatives, or 5 times the difference in all other cases; whether the applicant has sufficient resources to cover reasonably foreseeable medical costs; whether the applicant has financial liabilities; and whether the applicant has applied for or been certified to receive or has received public benefits on or after October 15, 2019.

The applicant’s EDUCATION and SKILLS: Whether the applicant has adequate education and skills to maintain employment with an income sufficient to avoid being more likely than not to become a public charge.

The applicant’s PROSPECTIVE IMMIGRATION STATUS and EXPECTED PERIOD OF ADMISSION: The immigration status the applicant seeks and the expected period of admission as it relates to the alien’s ability to support him/herself.

The AFFIDAVIT OF SUPPORT: Whether a valid and sufficient I-864 Affidavit of Support has been filed.

Without a doubt, the Public Charge Rule promises to introduce many new challenges for alien applicants who are seeking permanent residence in the United States, particularly those who are applying for adjustment of status. Stay tuned for additional blog posts on the details of the Public Charge Rule in the future.

If you have questions about the Public Charge Final Rule and need representation and assistance with your adjustment of status or extension of stay application, contact Immigration Lawyer Sean D. Hummel (954) 385-3111 to schedule a consultation.