WHAT’S HAPPENING
On August 14, 2019, the Department of Homeland Security (DHS) introduced a proposed regulation titled “Inadmissibility on Public Charge Grounds”, which was scheduled to take effect on October 15, 2019. Subsequent legal challenges to the rule ensued and on October 11, 2019, a U.S. District Court Judge in the Southern District of New York issues a nationwide injunction preventing DHS from enforcing the rule and federal court judges in the Eastern District of Washington and Northern District of California quickly followed with similar injunctions. In addition, on Friday, October 11, 2019, the Department of State published a proposed regulation titled “Visa Ineligibility on Public Charge Ground”, which largely mirrors the DHS rules and was also scheduled to take effect on October 15, 2019. Subsequently, however, the DOS announced that it would defer enforcement of the rule while it finalizes the necessary forms and updates internal procedures needed to properly implement the rule. It is presently unclear whether similar injunctions will be made in connection with the DOS rule, however, the current injunctions only apply to the implementation of the DHS rule.
UPDATE: On January 27, 2020, the Supreme Court lifted the stay on the nationwide injunction previously in place concerning the new Public Charge rule, with the exception of the State of Illinois, where the injunction remains in effect. On January 31, 2020, USCIS announced that the rule would begin taking effect everywhere but the State of Illinois, on February 24, 2020, and that revised immigration forms would be released by that time containing additional fields to address the new public charge grounds of inadmissibility. As such, USCIS will apply the new public charge grounds of inadmissibility to all impacted immigration applications and petitions postmarked or electronically filed on or after February 24, 2020.
UPDATE: On February 21, 2020, the Supreme Court lifted the injunction still in place in Illinois meaning that both the DHS and DOS Public Charge rules will take effect nationwide on Monday, February 24, 2020.
WHAT THIS MEANS
The DHS Regulation
If ultimately allowed to proceed, the new DHS regulation would expand the definition of “public charge” to include anyone who is deemed likely to use a defined set of cash and non-cash public benefits for more than 12 months in a 36-month period. The new rule would impose new requirements on foreign nationals present in the U.S. in nonimmigrant status who are requesting a change or extension of status. In addition, the rule would undertake a much closer review of the personal circumstances of applicants for adjustment of status, including reviewing their age, health, finances, etc., to determine whether they have used or are likely to used certain federal public benefits in the future. We outline both aspects of this rule in greater detail below.
Impact on Nonimmigrant Visa Holders
The rule imposes additional requirements on nonimmigrant visa holders (including H-1B, F-1, L-1, etc.) in the United States seeking and extension or change of status by which such requests could be denied if the foreign national applicant or beneficiary has used any of the following means-tested federal public health benefits for more than an aggregate of 12 months within any 36-month period:
Federal, state, local or tribal cash benefits for income maintenance
Supplemental Security Income (SSI)
Temporary Assistance to Needy Families (TANF)
General Assistance (GA)
The Supplemental Nutrition Assistance Program ((SNAP, formerly called “Food Stamps”)
Section 8 Housing Assistance under the Housing Choice Voucher Program
Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
Public Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq.
Federally-Funded Medicaid (except for Medicaid received by persons under 21, pregnant women, women up to 60 days after the last day of pregnancy, and persons with emergency medical conditions).
The following are among those not considered public benefits for purposes of the public charge rule:
Federal or state retirement benefits, including Social Security retirement benefits;
Social Security disability benefits;
Unemployment benefits, and other benefits that an individual earns through payroll tax and other tax deductions;
Health insurance tax credits under the Affordable Care Act (though possession of private health insurance without ACA credits can be used as a positive factor in assessing whether an adjustment applicant could become a public charge in the future);
Medicare benefits;
The Children’s Health Insurance Program (CHIP);
School-based services for primary and secondary students, including lunches; and
Disaster relief benefits
Note that benefits received by a spouse, child or any other person would not be counted against the principal applicant, unless the principal is also listed as a recipient of the benefit.
Impact on Applicants for Adjustment of Status
In addition to establishing that they have not received a covered public benefit for more than 12 months within the last 36 months, applicants for adjustment of status will also undergo a closer review to determine whether they are likely to become a public charge in the future. Factors that DHS will review and consider in making this determination include:
Age;
Health;
Family status;
Assets, resources, and financial status;
Education and skills;
Prospective immigration status;
Expected period of admission; and
Sufficient Form I-864, when required
DHS will deny an application where the adjudicator believes that the applicant is more likely than not to qualify as a public charge in the future. In making this determination, adjudicators will review the totality of the applicant’s circumstances, weighing both positive and negative factors and while many of these factors have long been a part of a public charge determination, DHS has expanded their meaning, thereby toughening standards. While no single factor is determinative, this totality of the circumstances test gives very broad discretion to adjudicators.
In addition DHS outlines a series of “heavily weighted factors” which it will consider in reviewing the totality of the circumstances. More specifically, DHS will weight the following negative factors heavily in supporting a finding that an individual is likely to become a public charge:
The individual is authorized to work but cannot show current or recent employment or a reasonable prospect of future employment.
The individual has previously qualified as a public charge in the 3 years preceding their application for adjustment of status on or after the rules ultimate effective date.
The individual has been diagnosed with a medical condition that is likely to require extensive medical treatment or that will interfere with their ability to work and they are uninsured with either no prospect of obtaining private health insurance or insufficient financial resources to pay for reasonably foreseeable medical costs related to a medical condition.
The individual has previously been found to be inadmissible or deportable based on public charge grounds.
Similarly, the following positive factors will be weighed heavily in supporting a finding that an individual is not inadmissible on public charge grounds:
The individual has household income, assets, resources, and support from a sponsor of at least 250% of the Federal Poverty Guidelines for his or her household size.
The individual is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of his or her household size.
The individual has private health insurance appropriate for the expected period of admission, so long as the individual does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.
In limited circumstances, and in USCIS’ discretion, an applicant for adjustment of status may post a bond to obtain adjustment of status, despite being determined inadmissible on public charge grounds. The final rule sets the minimum bond amount at $8,100, however, the actual bond amount would be dependent on the alien’s circumstances. In addition, in certain circumstances, an alien may obtain a waiver of the public charge ground of inadmissibility.
The DOS Regulation
Like the DHS rule, the State Department’s new rule adopts DHS’s revised definition of “public charge” and will also impose a higher standard on both nonimmigrant and immigrant visa applicants requiring them to provide additional personal data in order to establish they are not likely to become a public charge of the U.S. government if issued a U.S. visa. Like DHS, DOS will review a visa applicant’s personal circumstances under a “totality of circumstances” test, including consideration of a foreign national’s
Age;
Health;
Family status;
Assets, resources, and financial status;
Education and skills;
Prospective visa classification; and
Affidavit of Support, where required.
The DOS rule also adopts the exact list of public benefits enumerated in the DHS rule as well as the same heavily weighted positive and negative factors that consular officers should consider in making a public charge determination.
WHO THIS IMPACTS
The following list of individuals are exempt from the public charge grounds of inadmissibility:
U.S. citizens, including those related to a foreign national seeking benefits;
Certain foreign-born children of U.S. citizens
Most lawful permanent residents, including permanent residents who apply for naturalization to U.S. citizenship;
Certain adoptees; and
Foreign nationals who are exempt from public charge grounds of inadmissibility, including asylees, refugees, victims of human trafficking, domestic violence and certain enumerated crimes, and Special Immigrant Juveniles.
THINGS TO KEEP IN MIND
Until February 24, 2020, foreign nationals seeking to extend, change, or adjust their status from within the U.S. and those applying for nonimmigrant and immigrant visas outside the U.S. will not be subject to the higher public charge standards, including the requirement to provide detailed documentation of their personal financial circumstances.
D&S is continuing to closely monitor the associated regulations and federal court litigation and will provide updates as they become available.
This alert is for informational purposes only and does not constitute legal advice and should not be considered a substitute for consultation with immigration counsel.