New Rules for "Public Charge" Ground of Inadmissibility
Earlier this week, the Department of Homeland Security (“DHS”) published a final rule concerning the “public charge” grounds under the immigration statute for denying admission, extension of status, and permanent residence to foreign nationals. The rule will take effect after 60 days, on October 15, 2019, unless litigation prevents its implementation.
Summary of Rule
Under the immigration statute, DHS may deny admission or permanent residence to any foreign national who is "likely at any time to become a public charge." A public charge is someone who relies on public benefits because his or her income is insufficient to meet basic needs. Asylees and refugees are exempt from this determination.
Before the new rule was announced, a person was determined to be a “public charge” under the immigration statute if s/he depended primarily on public benefits.
Under the new rule, the definition of “public charge” has been changed to a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period.
The final rule defines a public benefit as:
Any federal, state, local, or tribal cash assistance for income maintenance, including:
Social Security Income (SSI)
Temporary Assistance for Needy Families (TANF)
Federal, state, or local cash benefits programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);
Supplemental Nutrition Assistance Program (SNAP);
Section 8 Housing Assistance;
Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
Public housing under section 9 of the U.S. Housing Act.
In addition to previous reliance on public benefits as defined above, USCIS officers will apply a “totality of circumstances” test that considers the foreign national's age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors. USCIS notes in the final rule that it interprets "likely at any time" to mean that it is "more likely than not" that the individual at any time in the future will receive one or more public benefits as defined by the rule.
For nonimmigrants seeking a change or extension of status, USCIS will conduct a more limited public charge determination by removing the future-looking requirement of the public charge determination, and only considering whether the noncitizen has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they seek to change from or extend, through the adjudication of that request.
What Next?
The new definition of “public charge,” which is considerably more restrictive than current policy, could result in significantly higher denial rates of permanent residence applications based on public charge determinations as well as applications to change or extend nonimmigrant status. Furthermore, the “totality of circumstances” test will leave substantial discretion to adjudicators and could produce inconsistent and unpredictable decision-making.
The rule also will worsen the chilling effect felt throughout immigrant communities following publication of DHS's proposed public charge rule last year in 2018. The final rule will likely deter even greater numbers of individuals from obtaining vital medical assistance and meeting other basic needs, even when receipt of the benefits in question is not penalized under the rule. This is of most concern in mixed households where there are US citizen children or relatives as well as foreign nationals, and lack of benefits could hurt US citizen children.
Coordinating with the State Department’s Public Charge Rules
In its final rule, DHS noted that it plans to align its new “public charge” rules with the State Department’s rules for interpreting the “public charge” ground when adjudicating visa applications at US Consulates abroad. Even before DHS proposed the new “public charge” rule last year, the State Department had already changed its rules for interpreting “public charge,” which resulted in a striking rise in visa denials on public charge grounds.
Litigation Efforts to Prevent Implementation of the New “Public Charge” Rule.
Immediately after DHS released an advance copy of the final rule, San Francisco and Santa Clara counties sued DHS over the rule in the U.S. District Court in the Northern District of California. Additionally, the National Immigration Law Center has announced its intent to litigate the rule.
Conclusion
When DHS first proposed this rule last year, the public responded with over 266,000 comments (!). Obviously, the rule is controversial and has triggered an incredibly strong response. The reason is because this rule will hurt low income foreign nationals who seek lawful permanent residence in the United States. It is an unfortunate outcome for a country that prides itself as a “land of opportunity.” But, more broadly, it affects families and communities where immigration status is mixed and public benefits help meet gaps in basic needs. With such a rule, we are deepening the economic divides in our country.
This alert is for informational purposes only and does not constitute legal advice. Please contact me (nadia@nadiayakooblaw.com) if you would like to discuss this development further.