WHAT IS HAPPENING
Under a newly-published regulation that is expected to take effect on October 15, 2019, foreign nationals who have received certain federal public benefits or who are deemed likely to become dependent on the government will face additional scrutiny when applying for certain immigration benefits and may be found inadmissible to the United States as a result.
The new rule changes the standards used to determine whether an applicant for admission to the U.S. or for adjustment of status is “likely at any time to become a public charge” at any time in the future. To make this determination, USCIS adjudicators will consider factors including the individual's age, health, education and skills, in addition to their current assets, resources, and financial status and whether they have used any covered public benefits in the past. The new rule also changes the definition of “public charge” from a noncitizen who primarily relies on public benefits to a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period.
WHO THIS IMPACTS
The Public Charge Inadmissibility Rule applies to inadmissibility determinations for applications for admission, adjustment of status, and those seeking to extend or change their status, and sets a public benefit condition for extensions of stay or changes of status.
Once effective, the new rule will subject applicants for adjustment of status to stricter scrutiny in order to determine whether they have used or are likely to rely on certain federal public benefits in the future. Applicants will be required to establish that they have not received a covered public benefit for more than 12 months in the aggregate within any 36-month period and that they are not likely to become a public charge at any time in the future.
Nonimmigrants seeking to extend or change their status will also face increased scrutiny under the rule and could have their applications denied if it is determined that they have received a covered public benefit for more than 12 months in the aggregate within any 36-month period after obtaining the status they are seeking to extend or change.
The rule expands the list of covered “Public Benefits” and includes any cash benefits for income maintenance, including: Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF) and General Assistance; the Supplemental Nutrition Assistance Program (SNAP); most forms of Medicaid; Section 8 Housing Assistance under the Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and public housing.
The new rule will apply only to applications filed after the effective date of the rule and only certain covered public benefits received by foreign nationals after the rule takes effect will be considered.
Note that all U.S. citizens, and some noncitizens, including asylees and refugees, and certain members of the U.S. armed forces are exempt from public charge determinations.
WHAT TO KEEP IN MIND
For the last 20 years, the Immigration and Nationality Act (INA) has granted adjudicators the authority to deny admission to the United States or an application for adjustment of status in cases where a foreign national was determined likely to become a public charge. However the new regulation provides adjudicators with significantly more discretion in making these determinations and expands both the types of foreign nationals subject to public charge review and the list of public benefits considered in the review itself.
Litigation against DHS as a result of the rule has already begun. D&S will continue to monitor this and will provide updates on any significant developments.