The concept of a public charge ground of inadmissibility has been a part of immigration law for more than a century and the current statutory provision of the Immigration and Nationality Act, as amended (INA), has not been changed.  Yet, based on a proposed regulatory change published by the Department of Homeland Security (DHS) on August 14, 2019, the public charge ground will be redefined and infused with a new level of power, scope, and importance as of October 15, 2019 to deny applications for admission, changes or extensions of nonimmigrant status, as well as to adjustment applications to immigrate to the U.S. The specific standards applied to nonimmigrant applications, however, are not the same as for adjustment applicants, which can lead to confusion of what standard is applicable to the facts.

Some Background

In the past, U.S. Citizenship and Immigration Services (USCIS) would define a "public charge," as someone 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."  To make a determination, USCIS would review factors such as: age, health, family status, assets, resources, financial status, education, and skills.

Family based applicants for adjustment of status to permanent residence as well immigrant visa applicants would file an I-864 Affidavit of Support to support their eligibility to immigrate. Under the proposed rule, the I-864 is no longer dispositive regarding whether an individual is likely to become a public charge.  In strengthening the standard, USCIS proposes to remove the consideration of whether an individual is "primarily" dependent on public benefits and replace it with defining the term to include any noncitizen, "who receives  a specified public benefit for more than 12 months in the aggregate within any 36-month period." It is important to note that the receipt of two benefits in one month counts as two months. In addition, the receipt of certain noncash benefits can now be considered in a public charge assessment such as:  the Supplemental Nutrition Assistance Program (SNAP – formerly known as Food Stamps) and Section 8 Housing Assistance under the Housing Choice Voucher Program.

Before the publication of the proposed rule by DHS, the Department of State revised its public charge guidance in the Foreign Affairs Manual (FAM) in January of 2018 and also emphasized a review of the totality of the circumstances in the assessment of the public charge ground as well as a wider range of public benefits in 9 FAM 302.8-2(B).  This revision resulted in 5,343 immigrant visa applications being denied for Mexican nationals from October 1, 2018 to July 29, 2019 versus seven denials on the same ground for Mexican nationals in fiscal year 2016 based on data released to Politico. Thus, these statistics should be considered as a harbinger of increasing denials and the potential massive impact of the public charge related changes. In addition, the Urban Institute recently published a brief in May of 2019 finding that one in seven adults in immigrant families (13.7 percent) reported that they or a family member decided not to participate in noncash government benefit programs in 2018 due to a fear of risking eligibility for permanent residence.

So what public benefits are NOT considered in a public charge determination by DHS?

1. The receipt of Medicaid for the treatment of an emergency medical condition;
2. Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;
3. School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law;
4. Medicaid benefits received by an alien under 21 years of age; or
5. Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.

In addition, DHS will only consider public benefits received directly by the applicant for the applicant's own benefit or if the applicant is a listed beneficiary of the public benefit. DHS will not consider, however, public benefits received on behalf of another in the capacity as a legal guardian or due to a power of attorney for the person.  Further, DHS will also not count the receipt of a public benefit by one or more members of the applicant's household as attributable to the applicant, unless the applicant is also a listed beneficiary of the public benefit.

DHS also indicated that it will not consider the receipt of designated public benefits received by a foreign national who, at the time of receipt, or at the time of filing the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces, and will not consider the receipt of public benefits by the spouse and children of such service members.  The proposed rule also provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under INA 320, 8 U.S.C. 1431 or INA 322, 8 U.S.C. 1433. It is also critical to remember that refugees, asylees, and Afghans and Iraqis with special immigrant visas are exempt from public charge inadmissibility.

What is the likelihood of implementation as of October 15?

At present, numerous lawsuits are pending against the implementation of the public charge proposed rule including one filed in the U.S. District Court for the Eastern District of Washington at Richland by thirteen states led by Washington Attorney General, Robert Ferguson and Virginia Attorney General, Mark Herring. The other states included in the suit are Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island. The primary complaints outlined against the proposed rule's implementation are that the proposed rule is:  contrary to the longstanding meaning of "public charge" under the INA and that the proposed rule is arbitrary, capricious, and an abuse of discretion because, "it reverses a decades-old, consistent policy without reasoned analysis, offers an explanation for the Rule that runs counter to the overwhelming weight of evidence before the Department, and disingenuously promotes as its purpose self-sufficiency in the immigrant population when, as abundantly shown by the administrative record, its effect is precisely the opposite."  Since this filing, the attorneys general for New York, Connecticut, and Vermont have also filed suit against the implantation of the proposed public charge rule.

In the meantime, it is critical for potential applicants for adjustment, admission to the U.S., as well as nonimmigrants contemplating an extension of change of status to consult with legal counsel to make educated decisions as to the application of the proposed rule requires a very fact specific analysis as we wait for possible injunctive relief.