How the new public charge rule will effect policy at USCIS

On August 14, 2019, the U.S. Department of Homeland Security (DHS) published the final version of its public charge rule, under the heading Inadmissibility on Public Charge Grounds.

The final rule applies to applicants for admission to the United States and to aliens within the U.S. seeking an Adjustment of Status to that of lawful permanent residents — those are the people who carry “green cards”. The rule also applies to aliens within the U.S. who hold a nonimmigrant visa and seek to extend their stay.

This amendment to DHS regulations formalizes the way in which it determines if such an individual is likely to become a public charge, thereby deeming them inadmissible to the United States. The new rule broadly expands the set of public benefits to be considered in making this determination, and widens the discretion granted to immigration officers in deciding which applicants are “more likely than not” to become public charges.

In the past, the determination was largely based on an assessment of the likelihood that an applicant for admission to the country would become dependent on cash benefits. The Trump administration is broadening the definition to include non-cash benefits such as Medicaid, the Supplemental Nutrition Assistance Program and federal housing assistance.

On January 30, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that it will begin applying the Inadmissibility on Public Charge Grounds final rule to applications postmarked on or after February 24, 2020.

The rule was originally scheduled to take effect on October 15, 2019, but was blocked by nationwide injunctions ordered by several U.S. District Court judges. The Supreme Court recently issued an order allowing the Trump administration to begin enforcing the regulations while legal challenges play out in the lower courts. The public charge rule will not be applied in Illinois, where a statewide injunction is still in effect.

Key features of the USCIS public charge rule

The final rule changes the definitions for ‘public charge’ and ‘public benefits’, and changes the standard used in determining whether an alien will remain self-sufficient in the future. The following summary of key changes derives from a post to the USCIS website titled Final Rule on Public Charge Ground of Inadmissibility.

Definition of Public Charge

The rule updates the definition of a ‘public charge’ to include nonimmigrants who have received, since obtaining their original nonimmigrant status, designated public benefits for more than a combined total of 12 months within any 36-month period.

Definition of Public Benefits

Under the expanded definition of ‘public benefits’, the USCIS will consider all of the following to be negative factors in weighing a person's application:

  • Supplemental Security Income: A federal means-tested welfare program that provides cash assistance to aged or disabled individuals.
  • Temporary Assistance for Needy Families: A federal program providing cash assistance to indigent families.
  • Any federal, state, local or tribal cash assistance for income maintenance.
  • Medicaid: A federal and state program that subsidizes medical expenses for people with limited income and resources. Exceptions are made for cases such as treatment of an emergency medical condition.
  • Supplemental Nutrition Assistance Program: Commonly known as “food stamps”. This federal program provides food-purchasing assistance for low-income people.
  • Public benefit payments resulting from institutionalization for long-term care.
  • Section 8 rental assistance: Section 8 of the U.S. Housing Act of 1937 authorizes rental assistance payments to private landlords on behalf of low-income households.
  • Section 9 public housing: Section 9 of the U.S. Housing Act of 1937 authorizes subsidy payments to public housing authorities which maintain affordable public housing units.
Disclaimer: Information on this website is not legal advice.