On Sep 18 2019 by Natalia Gouz

Caution Ahead: Grounds for Inadmissibility Based on Public Charge Expanding

U.S. Citizenship & Immigration Services’ (USCIS) new rule regarding the “public charge” ground for immigration inadmissibility is set to go into effect on October 15, 2019.

A foreign national who is likely to become a “public charge” is inadmissible to the United States. Currently existing under a framework of the Immigration and Naturalization Act (INA) of 1996 and legacy Immigration and Naturalization Service (INS) guidance from 1999, an individual is considered likely to be a public charge, or a burden on the government, if they are or would be “primarily dependent” on the government. The new rule not only significantly expands the list of benefit programs that would deem a foreign national a burden on the government, it also implements a more stringent, subjective test for making the determination.

For more than 100 years, the public charge ground of inadmissibility applied to individuals seeking Legal Permanent Residence (green card), but the new rule will also apply to those seeking an extension or change of temporary nonimmigrant visa status in the United States. The rule will not apply to current green card holders, except if returning from an international trip in excess of six months, or those applying for U.S. citizenship.  

Under the current rule, the government focuses on the receipt of significant cash assistance and considers the following benefit programs: Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI) and similar state and local programs, as well as long-term institutionalization paid by the government, including Medicaid.

Under the new rule, the list of enumerated benefit programs will expand to include: Supplemental Nutrition Assistance Program (SNAP), commonly known as food stamps; most forms of Medicaid (not including emergency Medicaid/medical assistance; services/benefits provided under the Individuals with Disabilities Education Act; certain school-based services/benefits; or Medicaid for pregnant women and children); and housing benefits, such as public housing and Section 8 assistance. The cash benefits include means-tests benefits from federal, state, local, and tribal benefit granting agencies. Non-cash benefits will not include emergency medical assistance, disaster relief, national school lunch programs, special nutrition program for Women, Infants, and Children (WIC), insurance under the Children’s Health Insurance Program (CHIP), foster care and adoptions, student and mortgage loans, energy assistance, homeless shelters, and food pantries, among others.

In addition to expanding the receipt of or approval to receive benefits from these programs as evidence that an immigrant is likely to become a public charge, the new rule also creates a more subjective test of the “totality of the circumstances” to determine whether an individual will likely become a public charge. In a departure from the current “primarily dependent” test, the new rule will deem applicants as inadmissible if they have received or are likely to receive one or more of the enumerated benefits for more than 12 months out of a 36-month period. In making its determination, the government will consider the following aspects of an individual’s life: age, health, family status, financial status, assets and resources, education and skills, as well as past and present use of benefits; some factors will be heavily weighted as positive or negative. For example, if an individual has received, or has been approved to receive, one or more public benefits for 12 months in aggregate within the 36-month period prior to the application for a green card or extension/change of nonimmigrant status, the government will consider this a heavily weighted negative factor. In calculating the 12 months, the government will count separate benefits received in aggregate. For example, if two separate benefits were received within a single month, they will count as two months of benefit use. Most individuals applying for a green card will be required to disclose detailed financial information and documentation which the government will consider in making the public charge determination.

In another departure from the current policy, the government will not give as much objective weight to an affidavit of support from a third-party, where required, but will instead assess it as only one of the factors.

The rule will only be applicable to immigration filings submitted on or after October 15, 2019 and will not consider any of the newly designated benefits received prior to that date. The rule contains some limited exemptions for active-duty service members and their families. The new rule will still uphold humanitarian-based exemptions from the public charge test, including those for refugees and asylees, individuals granted relief under the Cuban Adjustment Act, the Nicaraguan Adjustment and Central American Relief Act (NACARA), and Haitian Refugee Immigration Fairness Act (HRIFA), those applying for T visas (victims of human trafficking and immediate family members) and U visas (victims of crimes and immediate family members) and individuals seeking to adjust to permanent residence from T and U visas, Special Immigrant Juveniles, Violence Against Women Act (VAWA) self-petitioners, applicants for Temporary Protected Status (TPS), and certain applicants under the LIFE Act Provisions. Applications submitted by such applicants will not be subject to the public charge test and benefits used by such individuals will not be held against them in future immigration filings.

If USCIS finds an individual to be inadmissible under the public charge ground pursuant to the new rule, USCIS may allow a green card applicant to post a bond in order to receive the immigration benefit. This bond will start at the amount of $8,100 and may be cancelled when certain conditions are met.

While the public charge consideration has long been an applicable ground of inadmissibility for foreign nationals seeking to remain in the United States, the new rule seeks to incorporate several changes that will likely impact the U.S. immigrant population. In particular, the new rule expands the definition of public charge and decreases the standard to be considered a public charge, broadens the list of benefit programs considered under the public charge test, creates a more subjective balancing test where the evidentiary weight of an affidavit of support is given less weight than in the past, and applies the public charge condition to current temporary visa holders seeking to change or extend their non-immigrant status in the United States.

Shortly after the new rule’s publication, several states and advocacy groups challenged the rule in court on the grounds that it violates the Fifth Amendment’s Equal Protection guarantee and is arbitrary, capricious, and contrary to law. The administration has defended the new rule, explaining its purpose as ensuring that those seeking to remain in the United States are self-sufficient and responsible. As the effective date is a month away and the rule is facing challenges in court, immigration practitioners and clients are yet to see whether the published rule will take effect on October 15, 2019 as planned.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the September 15, 2019 edition of the The Legal Intelligencer© 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.