What is the ‘inadmissibility on public charge grounds’ final rule?

IMMIGRANTS who are identified by the USCIS or the US Embassy of becoming a public charge will not be issued a U.S. visa, granted admission to the United States as a legal permanent resident, or allowed to adjust status status to a greencard holder.

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public chargeINA Section 212(a)(4). 

On August 14, 2019, the U.S. Department of Homeland Security (DHS) published the Inadmissibility on Public Charge Grounds final rule that codifies regulations governing the application of the public charge inadmissibility ground under INA section 212(a)(4).  This final rule amends DHS regulations by prescribing how DHS will determine whether an alien applying for admission or adjustment of status is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act because he or she is likely at any time to become a public charge.  The final rule includes definitions of certain terms critical to the public charge determination, such as “public charge” and “public benefit,” which are not defined in the statute, and explains the factors DHS will consider in the totality of the circumstances when making a public charge inadmissibility determination.  The final rule also addresses USCIS authority to issue public charge bonds under section 213 of the Act in the context of applications for adjustment of status.  Finally, this rule includes a requirement that aliens seeking an extension of stay or change of status demonstrate that they have not , since obtaining the nonimmigrant status they seek to extend or change, received public benefits over the designated threshold, as defined in the rule.  In short, the new rule makes it easier for the government to deny legal permanent residency to immigrants “likely to use public benefits” and more difficult for immigrants to get approved.

The good news is that any Adjustment of Status application that had been filed before February 24, 2020 will still be considered under the old rules.

The bad news is that the USCIS will implement its Inadmissibility on Public Charge Grounds Final Rule beginning February 24, 2020 and will apply to all cases filed on or after that date.  This is a result of a 5-4 U.S. Supreme Court decision to remove the nationwide injunction blocking the final rule.

The following cases will be subject to the public charge final rule:

• Immigrants who are in the U.S. applying for a green card through the “adjustment of status” application.

• Immigrants requesting a visa extension to stay in the U.S.

• Individuals who are applying to come to the U.S. through US Embassy overseas.

Anyone who received one or more public benefits for more than twelve months in aggregate within any 36-month period could be held to be a public charge. The rule expands the “public benefits” to include the following benefits:

• Supplemental Security Income (SSI)

• Temporary Assistance for Needy Families (TANF)

• Supplemental Nutrition Assistance Program (SNAP)

• Section 8 Project-Based Rental Assistance and Housing Assistance Under the Housing Choice Voucher Program

• Subsidized Public Housing

• Federally-Funded Medicaid (with Certain Exclusions)

Any other public non-cash benefit that is not mentioned above will not be considered a public charge of inadmissibility.

All applicants for adjustment of status will be subject to the new rule. In determining inadmissibility, USCIS defines “public charge” as an individual who is likely to become “primarily dependent 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 will use a totality of the alien’s circumstances standard in determining whether immigrant or nonimmigrant visa applicants, applicants for admission to the United States, and applicants for adjustment of status to lawful permanent residence are likely to become a public charge “at any time” in the future. The alien’s circumstances will be measured by seven factors, including:

• Age

• Health

• Family status

• Assets, resources and financial status

• Education and skills

• Prospective immigration status and period of admission

• Affidavit of support, filed under 213 of the INA

No single factor, other than the lack of an affidavit of support will determine whether an individual is a public change.  Beginning February 24, 2020, all adjustment of status applicants will need to attach an additional new Form I-944, Declaration of Self-Sufficiency, when applying for a green card, which will request information and documents on personal and household assets, credit score report, resources, financial status, bankruptcy history, and public benefits history. This is a very thorough and extensive form that explores all aspects of your household’s financial affairs and requires supporting evidence of your finances and credit report.  Immigrants who plan to file for adjustment of status should seek the representation of experienced lawyer to help them navigate through this complex regulation.

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Please note that this article is not legal advice and is not intended as legal advice.  The article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C.  This article is not a solicitation.

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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist.  He was President of the Philippine American Bar Association.  He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association.  He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration.  He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010.  Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com