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USCIS announces Expansion of the Definition of the Public Charge Rule

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Pasricha & Patel Takeaways:

USCIS has announced a Final Rule that expands the definition of "Public Charge" to cover more kinds of public benefits received, and in the process, the revised rule will also impact many nonimmigrant applicants/beneficiaries as well.

Starting on October 15, 2019, and under the new rule, a foreign national may be deemed inadmissible as a public charge if he or she has received one or more covered public benefits for more than an aggregate of 12 months within any 36-month period (note: if a person receives two (2) benefits in one month, that counts as two months).

The benefits considered in a public charge analysis will be:

  • Any (meaning: federal, state, local) cash benefits for income maintenance (such as Supplemental Security Income (SSI), or Temporary Assistance to Needy Families (TANF));
  • The Supplemental Nutritional Assistance Program (SNAP, or food stamps);
  • Certain federal housing benefits (such as Section 8 Housing Assistance or Project-based Rental Assistance); and
  • Most forms of Medicaid (with some exceptions listed below).

The following benefits are not considered public benefits for purposes of the public charge rule:

  • Public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces (and their spouses and children);
  • Public benefits received by certain international adoptees and children acquiring U.S. citizenship;
  • 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;
  • 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;
  • Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act);
  • The Children’s Health Insurance Program (CHIP);
  • Medicaid benefits for emergency medical services;
  • School-based services for primary and secondary students, including lunches; and
  • Disaster relief benefits.

This regulation also does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitions).

This rule also makes certain nonimmigrants in the U.S. who have received designated public benefits that are above the designated threshold ineligible for change of status and extension of stay if they received the benefits after obtaining the nonimmigrant status they seek to extend or from which they seek to change.

USCIS also explained that upon its own discretionary authority, in limited circumstances, the USCIS may offer an alien inadmissible only on the public charge ground the opportunity to post a public charge bond. For now, that minimum bond amount will be set at $81,00; but the actual bond amount will dependent on the individual's own circumstances, and it is based on the USCIS adjudicating officer’s discretion.

What this new rule can do is to impact applicants who are on nonimmigrant visas, or even in adjustment of status and who are waiting for their lawful permanent resident status to be approved.

USCIS will take a closer look at each nonimmigrant and adjustment of status applicant's applications to see whether the foreign national has used public benefits. If the USCIS deemed the nonimmigrant to have used public benefits that are part of their list of public charge-linked benefits for more than 12 months in the aggregate within any 36-month period after they obtained the status they are seeking to extend or change, then the foreign national will not be able to apply for extension of stay or change of status in the US.

And for the adjustment of status applicants, the USCIS will consider the factor of whether the applicant is more likely than not to qualify as a public charge at any time in the future. USCIS will adopt the approach of reviewing the adjustment of status petition in the totality of the circumstances, both positive and negative. That would also mean considering the applicant's age, health, family size, educational level, skills and financial circumstances. There will be no single factor, but this test does give the adjudicating officer a lot of discretion and authority.

This rule is scheduled to take effect on October 15, 2019. So, this will only apply to public benefits received by the foreign national after the rule takes effect. And applications already filed and pending before the effective date of the rule are not subject to the new requirements.

Because this rule change is considered a dramatic one by its coverage and impact, and not just affecting those nonimmigrants, but also indirectly the various state and local governments and agencies who will now have to shoulder the extra burden of assisting those who will still need aid and benefit coverage; many immigrants will not be pursuing public benefits on a federal level because they do not want to hurt their nonimmigrant and immigrant cases that are filed and already pending with the USCIS.

There is already discussion amongst state governments about taking legal action and filing law suit to block this drastic and stricter rule.

Due to the ever changing manner in which the USCIS is now reinterpreting the public charge rule, we do advise all readers to check back to our website frequently for the most updated information and developments in immigration law and regulations and rules. And should you have any specific questions about this rule or the immigration process in general, please also do not hesitate to contact our office to schedule a consultation.