Public Charge Inadmissibility Rule. What does it mean? Who does it affect?

Background

On August 14, 2019, the Department of Homeland Security (DHS) published a final rule relating to the public charge ground of inadmissibility. This rule would apply to cases decided by U.S. Citizenship and Immigration Services (USCIS). The new rule was scheduled to take effect on October 15, 2019; however, multiple federal courts issued injunctions that temporarily stopped the rule from taking effect as scheduled. As the legal challenges against the new rule have continued, some of these injunctions were lifted. On January 27, 2020, the U.S. Supreme Court granted the federal government’s application to stay the last remaining nationwide injunction. This means that the rule is no longer enjoined, and thus, as of January 27, 2020, DHS announced that it will begin to enforce the rule on February 24, 2020.

What is Public charge?

The law provides of different types of grounds of inadmissibility and “public charge” is among those grounds. Immigration and Nationality Act (INA) provides that a person applicant for admission or for adjustment of status will be found inadmissible if that person is likely to become a public charge . The law leaves the room to the Attorney General or DHS to determine the procedure in which to determine who is considered a public charge.
How was public charge inadmissibility determined before the new rule of August 14, 2019?
Before the new rule there was no test applied to the intending immigrant on whether he/she will likely become a public charge. Rather, family-based immigrant visa applications or adjustment of status applicants and one category of employment-based immigrant visa applicants were required to submit an affidavit of support on Form I-864 to overcome the public charge inadmissibility ground.

What changes will be implemented in the new rule and how what will be the test to measure public charge?

DHS will assess whether a person is likely to become a public charge based on certain factors such as age, hearth, family status, assets, financial status, and education and skills. DHS will also review whether someone has benefited from certain public assistance in the past. In addition to forms usually required to fill out to file for an adjustment of status, USCIS will introduce new Forms I-944/I-945 which is expected to be 19 pages long. This form will collect various information which will help an Officer to make a decision based on totality of circumstances whether or not an applicant will be inadmissible based on public charge ground.

What publicly funded benefits may be considered for public charge purposes?

Cash assistance for income maintenance and institutionalization for long-term care at government expense may be considered for public charge purposes. However, receipt of such benefits must still be considered in the context of the totality of the circumstances before a person will be deemed inadmissible on public charge grounds. Public benefits that are received by one member of a family are also not attributed to other family members for public charge purposes unless the cash benefits amount to the sole support of the family.
Acceptance of the following types of assistance may lead to the determination that the individual is likely to become a public charge:
• Supplemental Security Income (SSI) under Title XVI of Social Security Act
• Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program) (Note: Non cash benefits under TANF such as subsidized child care or transit subsidies cannot be considered and non-recurrent cash payments for crisis situations cannot be considered for evidence of public charge)
• State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs)
• Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution). (Note: costs of incarceration for prison are not considered for public charge determinations)
This is not an exhaustive list of the types of cash benefits that could lead to a determination that a person is likely to become primarily dependent on the government for subsistence, and thus, a public charge. Receipt of any such cash benefits not listed above will continue to be assessed under the “totality of the circumstances” analysis.

What publicly funded benefits may not be considered for public charge purposes?

Non-cash benefits (other than institutionalization for long-term care) are generally not taken into account for purposes of a public charge determination.
Special-purpose cash assistance is also generally not taken into account for purposes of public charge determination.
Non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination. Non-cash or special purpose cash benefits that are not considered for public charge purposes include:
• Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care
• Children’s Health Insurance Program (CHIP)
• Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
• Housing benefits
• Child care services
• Energy assistance, such as the Low-Income Home Energy Assistance Program (LIHEAP)
• Emergency disaster relief
• Foster care and adoption assistance
• Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
• Job training programs
• In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
State and local programs that are similar to the federal programs listed above are also generally not considered for public charge purposes.

Who will be subject to the public charge rule and who will not be?

As discussed above, the public charge rule will be extended not only to applicants for a green card but also to certain non-immigrant or other temporary benefits, for example by extending non-immigrant status within the United States.
However, there will be certain groups of people who will be either exempt from public charge or may obtain a waiver for public charge when applying for a Green Card or other benefits with USCIS. These include:
1. Refugees
2. Asylum applicants
3. Refugees and asylees applying for adjustment to permanent resident status
4. Amerasian Immigrants (for their initial admission)
5. Individuals granted relief under the Cuban Adjustment Act (CAA)
6. Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA)
7. Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA)
8. Individuals applying for a T Visa
9. Individuals applying for a U Visa
10. Individuals who possess a T visa and are trying to become a permanent resident (get a Green Card)
11. Individuals who possess a U visa and are trying to become a permanent resident (get a Green Card)
12. Applicants for Temporary Protected Status (TPS)
13. Certain applicants under the LIFE Act Provision

This article is provided for information purposes. Should you have any questions or be interested to learn more about this topic, contact Immigration Attorney Claudine Umuhire Gasana at [email protected] or call us at (281)-809-5599.