DHS announces final rule on Public Charge ground of inadmissibility

ON August 14, 2019, the Department of Homeland Security (DHS) published a final rule governing the public charge grounds of inadmissibility under the Immigration and Nationality Act (INA). The rule is set to go in effect on October 15, 2019.

What is the “new” Public Charge rule?

The DHS final rule is not new, but it does change 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.

The final rule redefines 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 defines a public benefit as:

• Any federal, state, local, or tribal cash assistance for income maintenance, including:

• Supplemental 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 under the Housing Choice Voucher Program as administered by HUD;

• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;

• 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

In making its assessment on whether a noncitizen is likely to become a public charge, USCIS adjudicators will apply a “totality of circumstances test” that will consider: the “alien’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.”

If an applicant received a specified public benefit or 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, this will be negatively weighed by USCIS.

What can we expect to happen with applications now?

The final rule could result in significantly higher USCIS denial rates of adjustment of status applications subject to public charge determinations. Therefore, the final rule will likely deter “individuals from obtaining vital medical assistance and meeting other basic needs, even when receipt of the benefits in questions is not penalized under the rule.”

DHS expects that the State Department will align its own public charge policy the new final rule. The State Department had already changed its public charge policy before DHS’ final rule on public charge, resulting in the rise in visa denials on public charge grounds. Moreover, the Department of Justice is also developing a rule “that will change its policy regarding inadmissibility and deportability on public charge grounds.”

There are many questions surrounding current immigration laws in the wake of policy changes and executive orders from the current Administration.

Individuals and their families should consult with a licensed and experienced immigration and deportation attorney to discuss how these policy changes may affect their existing or future cases and what their options may be.

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Atty. Lilli Baculi Collins is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full-service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; [email protected]; www.chuatinsayvega.com.