DHS issued a new public charge regulation on August 15, 2019. The regulation will primarily affect persons who apply immigration benefits starting on October 15, 2019. It is anticipated that the State Department and EOIR will adopt the same standards when deciding whether or not to grant an immigrant or nonimmigrant visa abroad.
Applications and petitions already pending on or before the effective date of the rule will be adjudicated based on the current standard.
The term “likely at any time to become a public charge” is a ground of inadmissibility found in INA § 212(a)(4). The new rule redefines what this means in the following ways:
Application of Public Charge Rule: Primarily Dependent vs Likely Receipt
The public charge ground of inadmissibility used to be applied only to persons who might become “primarily dependent” on designated state and federal programs for more than half of their income or support. The new rule broadens the definition to apply to those who are determined to be more likely than not to receive a broader list of benefits for more than 12 months in the aggregate within any 36-month period.
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Addition of 5 New Benefit Programs
The new rule expands the list of state and federal programs that can be considered when applying the public charge test.
Previously, the agency only considered the following 4 programs:
- Supplemental Security Income (SSI)
- Temporary Assistance to Needy Families (TANF)
- State General Relief or Assistance
- A Medicaid program that covers institutionalization for long-term care
The new public charge rule adds the following 5 additional programs to the list:
- Non-Emergency Medicaid
- Supplemental Nutrition and Assistance Program (SNAP, formerly food stamps)
- Section 8 Housing Choice Voucher Program
- Section 8 Project-Based Rental Assistance
- Public Housing
Focus on 5 Statutory Factors
Under the new public charge rule, USCIS officers will shift attention away from the petitioning sponsor’s income and focus instead on the following 5 factors:
- Age: Applicants younger than 18 or older than the minimum early retirement age for Social Security will need to demonstrate why their age will not impact their ability to work.
- Health: Applicants will need to show whether their medical conditions will affect their ability to work and care for themselves.
- Family status: Applicant’s household include dependents and persons providing the applicant with more than 50 percent of support.
- Asset, resources and financial status: Whether the annual household income is at least 125% of the Federal Poverty Guideline, given the new household definition. Financial status will be measured by civil liabilities, credit history and credit score, past applications for or receipt of public benefits, an application for or receipt of a fee waiver for an immigration benefit after the effective date.
- Education and skills: Whether the applicant has adequate education and skills to obtain lawful employment with an income sufficient to avoid becoming a public charge. Factors include employment history, education level, occupational skills and licenses, English proficiency and the status of the applicant as a primary caregiver to another individual in the household.
Public Charge Bonds
The new rule allows for the posting of a bond in situations where the applicant needs to assure USCIS that h e or she will not become a public charge. If it is determined that an applicant is likely to become a public charge, he may be offered to opportunity to post a bond of at least $8,100. The bond is considered breached if the applicant receives benefits from any of the 9 programs identified above for more than 12 months in the aggregate within any 36-month period.
Public Charge Rule – Additional Resources
- California Sues Trump Over “Public Charge” Rule
- City and County of San Francisco v. USCIS Lawsuit
- 13 States File Lawsuit Against New Public Charge Rule
- DHS Finalizes Public Charge Rule (CLINIC)