August 14, 2019
On August 12, 2019, the Department of Homeland Security issued a preview of broad changes to the “public charge” ground of inadmissibility, to be officially published in the Federal Register on August 14, 2019. The rule will go into effect 60 days from the final publication and will be applied to applications received on or after October 15, 2019.
The public charge ground of inadmissibility is not new, having been in existence since the 1880s and codified under INA § 212(a)(4), which states that an individual is inadmissible to the United States if he or she is “likely to become a public charge”. Up until now, this has been defined narrowly to affect those who are primarily dependent or will become primarily dependent on a finite list of public benefits and programs, including Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and Medicaid used exclusively for long-term care. This new rule broadens the scope significantly both regarding who is affected and what constitutes “likely to become a public charge.”
Who is affected by this new rule?
In essence, everyone applying for a temporary nonimmigrant visa or applying for permanent residence will have the burden of proving that they are not likely to become a public charge. There are a few notable exceptions, including, among others, asylees and refugees, U nonimmigrants, T nonimmigrants, those with Temporary Protected Status, VAWA self-petitioners, and Special Immigrant Juveniles.
While this rule applies specifically to applications adjudicated by USCIS in the United States, the Department of State is expected to adopt the same standards, and indeed, the immigration community has already seen stricter public charge standards being implemented at many U.S. consulates.
The rule additionally does not apply to applicants for naturalization, unless the applicant’s eligibility for permanent residence in the first place is called into question based on public charge inadmissibility.
Also note that any permanent residents who attempt to apply for readmission into the United States following departures of more than 180 days will again be subjected to the public charge ground of inadmissibility.
What does it now mean to be “likely to become a public charge”?
This final rule moves away from the “primarily dependent” on public benefits standard from a 1999 USCIS memorandum and states that an applicant will now be inadmissible if he or she is “more likely than not at any time in the future to receive one or more [of a list of nine] public benefits…for more than 12 months in the aggregate within any 36-month period.” This both more than doubles the list of included public programs and renders someone inadmissible for mere use of such public benefits, rather than being more than 50% reliant on the government for support.
Which public benefits are included?
The new rule includes a list of nine public benefits and programs to include assistance with health, housing, and nutrition, rather than merely income support. These programs are:
The new rule does not include use of emergency medical assistance, disaster relief, national school lunch/breakfast programs, foster care, Head Start, Child Health Insurance Program, or the Earned Income Tax Credit or Child Tax Credit.
How will the public charge rule be implemented?
Applicants for and beneficiaries of nonimmigrant visas and permanent residence will be assessed for the public charge ground of inadmissibility using a five-factor test. Applicants for permanent residence will also be required to complete Form I-944, Declaration of Self-Sufficiency. These five factors are: age; health; family status; assets, resources, and financial status; and, education and skills. USCIS will assess the totality of these factors to determine whether someone is likely to become a public charge.
Regarding the health factor, any applicants who have a medical condition will need to show how it affects their ability to work and provide for themselves. USCIS will defer to a civil surgeon to make this determination.
Factors under the education and skills section include employment history, education level, occupational licenses, and notably, English proficiency. Previously English proficiency has only been a factor for naturalization applicants.
Negative factors will include:
Positive factors will include:
What’s this about public charge bonds?
One of the more controversial components of the new rule is the implementation of posting bonds for those who need to prove to the USCIS that they will not become a public charge. The rule states: “if found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I-945). A public charge bond may be cancelled (Form I-356) upon the death, naturalization (or otherwise obtaining U.S. citizenship), permanent departure of the alien, or otherwise as outlined in proposed 8 CFR 213.1(g), if the alien did not receive any public benefits as defined in the proposed rule.”
Once found to be inadmissible, USCIS may offer applicants the chance to post a bond of at least $8100. The bond will only be cancelled upon fairly extreme conditions: death, naturalization, or permanent departure from the United States. The bond will be permanently breached if the applicant receives any of the above-listed benefits for more than 12 months in the aggregate within a 36-month period.
Will this rule stick?
The proposed rule was originally issued in October 2018, allowing for the required 60-day notice and comment period. DHS received over a quarter million comments, most of which were in opposition to the proposed rule and has incorporated answers to many of the comments in its final rule. Many advocacy groups have announced plans to challenge the rule and seek injunctions in federal court, but the administration will argue they are simply updating previous guidance, rather than implementing a new law and the fact that this does not change any regulations will make it harder to mount such a challenge.
What should you do now?
This rule will only affect applications filed on or after October 15, 2019, so it is important to file any potentially affected applications as soon as possible. Should you wish to hear more about this rule and how it may affect your immigration proceedings, please contact LHSC to schedule a consultation with one of our attorneys.