Practice Alert: DHS’s Public Charge Final Rule
On Wednesday, August 14, 2019, DHS published a final rule governing the INA §212(a)(4) public charge grounds of inadmissibility. Litigation has now stopped the implementation of the rule that was due to go into effect on October 15, 2019. The Department of State version has not yet been stopped.
Summary of Rule
The DHS final rule dramatically changes the standard by which the Department determines whether an applicant for adjustment of status or admission is “likely at any time to become a public charge” and therefore inadmissible to the United States (note that some noncitizens, such as asylees and refugees, are exempt from public charge determinations).
Under the final rule at 8 CFR 212.21(a), USCIS removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).
The final rule at 8 CFR 212.21(b) defines a public benefit as:
- Any federal, state, local, or tribal cash assistance for income maintenance, including:
- Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
- Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.;
- 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), 7 U.S.C. 2011 to 2036c;
- Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f;
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
- 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 of 1937
A sufficient affidavit of support will not be outcome-determinative as to whether an individual is likely at any time in the future to become a public charge. Rather, to make that assessment, USCIS adjudicators will apply a complex totality of circumstances test that weighs the alien’s age; health; family status; education and skills; and assets, resources, and financial status, considering 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.
One heavily weighted negative factor is an applicant’s receipt of specified public benefits for 12 or more months in the aggregate within any 36-month period, beginning no earlier than the 36 months prior to the application for adjustment of status or adjustment. Critically, however, DHS will not regard as a negative factor the receipt of specified benefits prior to the rule’s effective date, with the exception of cash assistance and long-term institutionalization benefits that DHS already considers relevant to the public charge determination under current policy.
Under the final rule, DHS will also conduct a more limited public charge determination of nonimmigrants seeking a change or extension of status, 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.
Consequences of Rule
The DHS final rule, which is vastly more restrictive than current policy, could result in significantly higher USCIS denial rates of adjustment of status applications subject to public charge determinations.
Several entities including AILA and others have successfully sued DHS over the rule in the U.S. District Court. For now, it is delayed. More to follow.