Ustun Law Group, PLLC

Background

The Final Rule, issued in August and originally scheduled to be effective in October, prescribes how DHS would determine whether an alien is inadmissible to the United States based on the alien’s likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act.

U.S. Citizenship and Immigration Services (USCIS) will implement the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on Feb. 24, 2020, except for in the State of Illinois where the rule remains enjoined by a federal court as of Jan. 30, 2020.

Under the Final Rule, USCIS will look at the factors required under the law by Congress:

  •  An alien’s age,
  • health,
  • income,
  • Education
  • Skills
  • Along with other things, in order to determine whether the alien is likely at any time to become a public charge
  • No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge
  • The Final Rule also addresses USCIS’ authority to issue public charge bonds in the context of applications for adjustment of status
  • The Final Rule includes a requirement that aliens seeking an extension or stay of change of status demonstrate that they have not received public benefits over the designated threshold since obtaining the nonimmigrant status they seek to extend or change

What Counts as a “Public Charge”?

In determining inadmissibility, USCIS defines “public charge “as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.

USCIS guidance specifies that cash assistance intended for income maintenance, such benefits include:

  •  Supplemental Security Income (SSI)
  • Cash assistance from the Temporary Assistance for Needy Families (TANF) program
  • State or local cash assistance programs for income maintenance often called “general assistance” programs
  •  Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations
  • Short-term institutionalization for rehabilitation is not subject to public charge consideration.

Which Benefits Are Not Subject to Public Charge Consideration?

Under the agency guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits 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, prenatal care, and emergency medical services) other than support for long-term institutional care
  • Children’s Health Insurance Program (CHIP)
  • Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)- commonly referred to as 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)
  • Non-cash benefits under TANF such as subsidized child care or transit subsidies
  • Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits
  • Unemployment compensation

Please Note: Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF. Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration.

How Will USCIS Implement This New Rule?

  • USCIS will post updated forms, submission instructions, and Policy Manual guidance on the USCIS website during the week of Feb. 3, 2020, for applicants to review the process and adjust filing methods
  • After Feb. 24, 2020, everywhere except in the State of Illinois
  • USCIS will reject prior editions of forms if the form is postmarked on or after Feb. 24, 2020
  • If USCIS receives an application or petition for benefits using incorrect editions of the forms, USCIS will inform the applicant or petitioner of the need to submit a new application or petition using the correct forms
  • USCIS will continue to release information through its website in the weeks leading to the rule’s implementation date, including in the event that the injunction in Illinois is lifted
  • This will include an update to the USCIS Policy Manual.
  • In the coming weeks, the agency is planning to hold a public engagement for immigration attorneys, industry representatives, and other relevant groups to discuss the final rule
  • DHS remains enjoined from implementing the Final Rule in the State of Illinois. Should the injunction in Illinois be lifted, USCIS will provide additional public guidance

We will keep you posted on the new forms, and submission instructions once we get the update from USCIS. Please let us know if you have any question or comments about these rules, you can also schedule a consultation, please contact us using the form on this page or give us a call at 469-994-9407.

You can take advantage of free thirty minutes call to briefly discuss your specific situation.