Proposed Rule: What is the new Public Charge Ground of Inadmissibility Ruling all about?

Did you know that the U.S. Department of Homeland Security (DHS) is proposing a new rule for the “public charge ground of inadmissibility”?

What is this new rule all about? Why are they proposing a new rule? And how will this affect your application? If you are applying for lawful permanent residence within the US, this may concern you.

What is the history of the Public Charge Rule?

It was created in 1882 to deny the visa application of anyone who would likely become a public charge. But the law didn’t define what a public charge is.

A public charge is anyone who would become dependent on the U.S. government after gaining immigrant status. The Public Charge Rule has been enacted more as a guiding principle than an actual rule.

Since 1999, the Department of Homeland Security has made public charge determinations depending on whether you:

• Received public cash assistance for income maintenance or;
• Received long-term healthcare at the U.S. government’s expense.

This means that you can be a public charge if you have used the following:

• Medicaid or another public program that covered your long-term health care;
• Temporary Assistance for Needy Families or otherwise known as “welfare”;
• Supplemental Security Income;
• State or local assistance or what is known as “General assistance” at the time of filing your green card.

Back then, only permanent residents and U.S. citizens were eligible for those benefits. Thus, it was unlikely that a green card applicant would be denied for using services they couldn’t get as a public charge.

The Trump administration proposed changes to the existing Public Charge Rule in 2018.

On September 28, 2018, the United States Department of Homeland Security proposed a new Public Charge Rule.

On August 14, 2019, it published a final rule. The new Public Charge Rule went into effect on February 24, 2020.

What changed under the Trump Administration’s Public Charge Rule?

Under the new rule, the Trump Administration expanded the criteria for becoming a public charge.

Instead of just assessing whether an applicant had relied on U.S. government assistance in the past, the new rule went beyond asking if a green card or visa applicant was “likely” to rely on government benefits in the future.

If they were found likely to receive benefits in the future, they could not get their visa or green card.

To assess the likelihood of future receipt of public benefits, Immigration officers began considering things like your:

• Age;
• Medical conditions and how those influenced your ability to work. Applicants needed to be able to show that they had secured private health insurance in advance before coming to the United States;
• Family size. Applicants from larger households were deemed more likely to become a public charge;
• Your ability to speak English;
• Your past work and education also became a factor in assessing whether you could get a job as an immigrant; and
• For the first time, DHS was checking credit scores, credit history, and financial liability to determine applicants’ financial status.

As part of the rule change, the scope of public benefits resulting in denial on public charge grounds was also expanded.

In addition to receiving welfare and long-term subsidized healthcare, using one or more of these public benefits for 12 points made you a public charge and, thus, ineligible for a green card. These public benefit programs include:

• Supplemental Nutrition Assistance Program or “food stamps”
• Section 8 housing assistance
• Any federal public housing subsidies or rental assistance
• Medicaid in a non-emergency, except for pregnant women and mothers who saw the doctor within 60 days of birth, people with disabilities, and children under age 21

One point was assigned for each month of each benefit. Hence, if you received food assistance and housing assistance for 6 months, that would be 12 points and you would be disqualified for a period of 3 years.

These newly-added disqualifying benefits were ones that non-citizens could legally take advantage of before the new rule.

Non-citizens who had used these benefits and were then applying for green card visa status were being punished for using them legally in the past. DHS, however, did not penalize children or spouses of green card applicants.

What is the new requirement concerning finances?

The new Public Charge Rule also added a new requirement for personal financial resources. To meet this new requirement, all adjustment of status applicants had to complete the new USCIS Form I-944.

Form I-944 was officially named “Declaration of Self-Sufficiency” and had to be filed in addition to the existing Form I-864, “Affidavit of Support.”

This meant that beyond proving that their green card sponsors had enough financial resources, applicants now also had to prove that they could also personally meet the income thresholds.

Applicant household income had to be at at least 125%-250% of the Federal Poverty Guidelines. The government strongly preferred those with income above 250% of the guidelines. If your income was above 250%, you would be considered less likely to become a public charge.

For applicants from low-income immigrant families who previously only had to rely on their sponsor to meet the income requirements for their application, meeting this new personal financial requirement became a challenge.

Those who were applying for the green card through the consular process were then required by the State Department to complete Form DS-5540 – Public Charge Questionnaire. Consular officers reviewed the questionnaire to make sure immigrant visa applicants had not used any public benefits in the past.

For both adjustments of status and consular processes, green card applicants had to jump through more hoops that hadn’t existed previously.

What is the DHS proposed rule?

DHS is proposing how to decide whether someone who is applying for a green card is “likely at any time to become a public charge”.

In a nutshell, they want to change the phrase in the rule “likely at any time to become a public charge” to

Why is the DHS proposing a new rule?

DHS proposed the changes because they want to avoid unnecessary burdens on applicants, adjudicators, and benefits-granting agencies.

Additionally, they want to avoid situations that may jeopardize public health because immigrants are afraid of accepting public benefits that they are eligible to receive. For example, medical care, children’s immunizations, basic nutrition, or treatment of medical conditions.

Under this proposed rule, a non-citizen would be considered a public charge only if they are likely at any time to become SOLELY dependent on government assistance.

Moreover, in the proposed rule, DHS would only consider the following services for public charge purposes:

• Supplemental Security Income
• Cash assistance for income maintenance under the Temporary Assistance for Needy Families program;
• State, Tribal, territorial, and local cash assistance for income maintenance; and
• Long-term institutionalization at government expense.

DHS would not consider non-cash benefits like food nutrition assistance programs such as:

• Supplemental Nutrition Assistance Program or food stamps;
• Children’s Health Insurance Program;
• Most Medicaid benefits except for long-term institutionalization at government expense; and
• Housing benefits and transportation vouchers.

Additionally, DHS would not consider disaster assistance received under the Stafford Act, benefits received via a tax credit or deduction, Social Security, government pension, or other earned benefits.

Most non-citizens who are eligible for public benefits are not subject to the public charge ground of inadmissibility. Moreover, the proposed rule would not affect lawful permanent residents, unless they try to return to the US after leaving for more than 6 months.

The proposed rule includes the following categories of non-citizens who are exempted from the public charge determination:

• Refugees;
• Asylees;
• Non-citizens with temporary protected status;
• Special immigration juveniles;
• T and U nonimmigrants; and
• Self-petitioners under the Violence Against Women Act.

If you receive benefits while under one of the above categories, you will not be disqualified when you file for a green card later.

In case you are disqualified, the proposed rule also recommends a waiver process to overcome a finding of public charge. All in all, it’s a comprehensive approach.

This DHS proposal will be subject to public comment in the next two months through regulations.gov under docket number USCIS-2021-0013.

Let an Immigration Attorney address your concerns

What do you think about this ruling? If you want to discuss your case or need help on your citizenship application, or even your immigration journey, feel free to consult with an experienced immigration attorney. We will let you know if and how we can help.