On August 12, 2019, US Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS), published an advance copy of the final rule on inadmissibility on public charge grounds. The final rule will be effective 60 days after the date of publication in the Federal Register. According to the notice, applications and petitions already pending with USCIS on the effective date of the rule will not be subject to the new rule. The final rule will be published in the Federal Register on August 14, 2019. This Legal Update provides background on and details of the rule and notes its potential impact and likely response to the rule.
A. Statutory Authority
- The Immigration and Nationality Act
of 1952 (INA) and implementing regulations have long included
grounds of inadmissibility and removal designed to limit access to
public benefits by immigrants and nonimmigrants.
- Under INA Section 212(a)(4), an alien
may be denied admission into the United States or adjustment to
lawful permanent resident (LPR) status if he or she is "likely
at any time to become a public charge."
- Under INA Section 237(a)(5), an individual admitted to the United States may be subject to removal if he or she has become a public charge for reasons not affirmatively shown to have arisen since entry. This ground of removal has been rarely applied and is not affected by the new rule.
B. Legacy Implementation
- In September 1996, Congress enacted
the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), which mandated consideration of the following factors in
making a public charge assessment: (1) age; (2) health; (3) family
status; (4) assets, resources, and financial status; and (5)
education and skills. IIRIRA also included new provisions requiring
most family-based immigrants and some employment-based applicants
to submit a Form I-864, Affidavit of Support, from a
qualifying US citizen or lawful permanent resident sponsor. By
signing Form I-864, the sponsor agrees to use his or her financial
assets to support the sponsored immigrant. The sponsor's assets
are deemed to be available to the immigrant when the immigrant
applies for means-tested public benefits. Form I-864 is a contract
that may be enforced by the sponsored immigrant and the benefit
agency if the agency pursues repayment of the benefits
- DHS and the Department of State (DOS)
have primary responsibility for implementing the public charge
provisions. USCIS may make a public charge determination when an
individual applies to adjust to LPR status. Abroad, DOS consular
officers may make a public charge determination when an individual
applies for a visa.
- Although the INA does not explicitly define the term "public charge," since 1999, interim guidance has defined it to mean a person who is or is likely to become "primarily dependent" on "public cash assistance for income maintenance" or "institutionaliz[ed] for long-term care at government expense" (INS No. 1989-99 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28675-88 (May 26, 1999)). The new rule explicitly supersedes the 1999 interim guidance.
C. Change in Policy and Reported Impact
- In January 2018, DOS revised the
Foreign Affairs Manual (FAM) to instruct consular officers to
consider a wider range of public benefits when determining whether
visa applicants who have received or are currently receiving
benefits are inadmissible on public charge grounds.
- Recent press reports have indicated
that the number of visas denied based on the likelihood that the
applicant will become a public charge has increased dramatically.
For example, POLITICO recently reported that DOS had
denied 5,343 immigrant visa applications for Mexican nationals on
public charge grounds so far this fiscal year, compared to just
seven denials for Mexican applicants in fiscal year (FY)
- The number of visa denials for applicants from all nations based on public charge has risen, as well. DOS data shows 12,179 visa rejections on public charge grounds from October 1, 2018, through July 29, 2019. DOS disqualified only 1,033 people worldwide on public charge grounds in FY2016.
D. The Final Rule
- On October 10, 2018, DHS published a
notice of proposed rulemaking, "Inadmissibility on Public
Charge Grounds," with request for public comments. The agency
reports that it received and considered 266,077 mostly negative
comments in response to the proposed rule.
- The current list of specified public
benefits includes only federal, state, local, or tribal cash
assistance for income maintenance or institutionalization for
long-term care at government expense, Temporary Assistance for
Needy Families (TANF), and Supplemental Security Income (SSI). The
new rule adds non-cash benefits such as Medicaid (with limited
exceptions for Medicaid benefits paid for an "emergency
medical condition" and for certain disability services related
to education), the Medicare Part D Low-Income Subsidy, the
Supplemental Nutrition Assistance Program ("SNAP" or
"food stamps"), the Section 8 Housing Choice Voucher
Program, Section 8 Project-Based Rental Assistance, and public
- The rule defines a "public
charge" to mean "an alien who receives one or more
designated public benefits 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 new rule also specifies a list of
factors, such as age, English language proficiency, family size,
and health, that would be considered in determining whether,
"in the opinion of the officer," the applicant is
"likely to become a public charge." Information on the
factors will be collected on Form I-944, a new form designed for
- When considering receipt of public
benefits in the public charge inadmissibility determination, DHS
will not consider any public benefits received by aliens serving in
active duty or in the Ready Reserve component of the US Armed
Forces or the spouse or child of the service member. Additionally,
DHS will not consider disaster relief, emergency medical
assistance, benefits received by an alien's US citizen
children, and Medicaid benefits received by children of US citizens
and potential adoptive children of US citizens.
- The rule also enumerates 27
categories of individuals, including refugees and asylees, who are
exempt by statute or regulation from the public charge ground of
- In addition, for the first time, a
nonimmigrant seeking a change of status or extension of stay will
be required to state whether he or she has received public
- Finally, the rule authorizes officers to allow the posting of a public charge bond in an amount not lower than $8,100 (indexed annually for inflation) to overcome a finding of inadmissibility on public charge grounds.
E. Impact of Final Rule and Likelihood of Litigation
- The new rule is likely to exacerbate
the upward trend in public charge visa denials noted above, with
the most significant effects being felt by immigrants from Mexico
and Central America. The Migration Policy Institute (MPI), for example,
reviewed US Census Bureau data from 2012 to 2016 to evaluate the
anticipated impact of the proposed "totality of the
circumstances" test under which officers will consider a
series of positive and negative factors in assessing the likelihood
of becoming a public charge. MPI found that, "if the
test were applied to the approximately 940,000 permanent residents
admitted in 2017 (excluding refugees, asylees, and other
humanitarian admissions), about 650,000 would have been at risk of
denial for having at least one negative factor, and, among them,
about 400,000 for having at least two."
- Immigrant advocacy groups have
suggested that, as with the proposed rule, the final rule will have
a chilling effect on families, who will chose to forgo essential
services for which they are otherwise eligible to avoid putting
their immigration status at risk.
- Press reports from India have raised concerns
that the "totality of the circumstances" list of factors,
such as English proficiency, income, and family size, could be used
to deny the H-1B and F-1 student visa applications of people who
have never even used public benefits.
- While DHS did make some changes based
on the numerous public comments it received, the new rule is
already being challenged in the courts. The first lawsuit was filed
on August 12, 2019, by Santa Clara County and San Francisco,
alleging that the rule conflicts with the INA and seeking a
temporary injunction in the Northern District of California. In
addition, the attorneys general for New York and California have
vowed to fight the rule in court.
- If the new rule is allowed by the courts to take effect, we also anticipate legal challenges brought by or on behalf of persons found to be inadmissible under it, including those seeking to extend or change their status in the United States.
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