Earlier this week, the Supreme Court ruled 5-4 to lift the nationwide injunction on a rule redefining when DHS may deny admission or permanent residence to any foreign national who is “likely 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:

1. 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);

2. Supplemental Nutrition Assistance Program (SNAP);

3. Section 8 Housing Assistance; 

4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);

5. 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

6. 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.

According to a statement released by the Department of Homeland Security (DHS) on January 30, the new rule will be implemented on Feb 24, 2020.  It was originally scheduled to take effect last year on October 15, 2019.  

Please see our previous blog post to learn more on who qualifies as a “public charge” under this new rule.

What’s Next?

Except for in the State of Illinois, USCIS will apply the new rule to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. 

The new rule prohibits DHS from considering a foreign national ’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before October 15, 2019, when deciding whether the foreign national is likely at any time to become a public charge. 

USCIS will post updated forms, submission instructions, and Policy Manual guidance on the USCIS website during the week of February 3, 2020.

USCIS has confirmed that they will reject prior editions of forms if the form is postmarked on or after Feb. 24, 2020. 

It should be noted that litigation of the rule will continue.  This Supreme Court decision allows the rule to take effect until a final decision on the legality of the new rule is made.  

Conclusion

This rule is deeply controversial and has triggered an incredibly strong response from the public and immigrant advocacy groups across the country.  It will not only hurt low-income foreign nationals and their families as they seek lawful permanent residence in the United States, but also the socioeconomic diversity of our country.

This alert is for informational purposes only.  Please contact us if you would like to discuss this development further.