DHS Announced Final Regulation on ‘Public Charge’ Inadmissibility

DHS Announced Final Regulation on ‘Public Charge’ Inadmissibility

The Department of Homeland Security (DHS) has announced a final rule that will redefine the “public charge” ground of inadmissibility under the Immigration and Nationality Act and change the way U.S. Citizenship and Immigration Services (USCIS) officers determine whether an applicant is inadmissible under that statutory ground.

USCIS has posted the pre-publication version of the rule. The final regulation is expected to be published in the Federal Register on Aug. 14, and the new rule will apply to applications and petitions postmarked or submitted electronically on or after the effective date of Oct. 15.

The rule will:

  • Require most applicants for a change or extension of non-immigrant status to demonstrate that they have not, since obtaining their non immigrant status, received public benefits as defined in the rule. In a change from the proposed version, the final rule does not require these applicants to demonstrate that they will not become a public charge in the future.
  • Establish a “totality of the circumstances” test for whether an applicant is likely to become a public charge in the future, directing USCIS officers to consider the applicant’s age, health, family status, financial status and assets, education, skills, expected period of admission and immigration status, among other factors.
  • Define “public charge” as an alien who receives one or more of the public benefits identified in the rule for an aggregate of more than 12 months in a 36-month period. The rule states that receipt of two benefits in one month counts as two months.
  • Expand the definition of “public benefit” so that it not only includes cash benefits, but certain non-cash benefits as well, including most forms of Medicaid, food stamps, and Section 8 housing assistance.
  • Provide exemptions for applicants who are serving in the U.S. military or Ready Reserve and their families. It also will not count benefits received by children who will obtain U.S. citizenship under Section 320 of the Immigration and Naturalization Act.
  • Allow USCIS discretion to offer applicants who would otherwise be inadmissible the chance to post a public charge bond of at least $8,100, an amount that would adjust annually for inflation.
  • Not include as public benefits certain emergency medical assistance, disaster relief, federal school lunch programs, foster care and adoption, Head Start, or student or home mortgage loans.
  • Not apply to humanitarian-based programs, including programs for refugees, asylum seekers, special immigrant juveniles, trafficking victims, victims of qualifying criminal activity or victims of domestic violence.

Background: The Trump administration first proposed the regulation in October 2018, and subsequently received 266,077 comments on the rule, the vast majority of which opposed the change, according to DHS. USCIS stated in its announcement of the rule that it will hold engagement sessions in the coming weeks “to ensure the public understands which benefits are included in the public charge inadmissibility rule and which are not.”

BAL Analysis: The rule is scheduled to take effect Oct. 15 at 12:00 a.m. EST, and the agency has stated that applications submitted before that date or that remain pending on that date will be adjudicated under current rules. Depending on how it is implemented, this change could have a significant impact on future permanent legal immigration flows, and organisations have already announced their intent to file lawsuits challenging the regulation. They will likely seek to block implementation of the rule while litigation proceeds. BAL is continuing to review the regulation and will provide updates on developments.


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