Department of Homeland Security (DHS) Broadens ‘Public Charge’ Rule

The DHS is getting close to finalizing a new standard to determine who is or might become a “public charge” for immigration purposes. Public charge is the evaluation whether someone is likely to become reliant on public benefits, and consequently, whether he or she may enter the country or change his or her immigration status to become a legal permanent resident (LPR, a “green card” holder). The agency “pre-released” a new rule, “Inadmissibility on Public Charge Grounds,” that it intends to officially publish in the Federal Register in the near future to initiate the 60-day Notice and Comment Period.

Who Will Be Included in the New Standard?

  • Those seeking for immigrant or nonimmigrant status overseas
  • Those applying entry as an immigrant or nonimmigrant
  • Those seeking for Adjustment of Status
  • Non-immigrants applying for a change of status or extension of status

Who Will Not Be Included in the New Standard?

  • Most LPRs (Legal Permanent Residents or Green Card Holders), even when applying to naturalize
  • Essentially, refugees, those on asylum or on active military duty, and children adopted by U.S.

What is the New Standard of Review?

  • Decisions will be made based upon the “totality of circumstance” test.
  • There are limits on the period and amount of the benefits received.
  • Officers may look into how previous benefits were used and how subsequent benefits will be utilized.
  • Officers will consider the applicant’s age, health, family status, assets, resources, education and skills, required affidavit of support from a sponsor, and employment history

What Benefits May Subject an Individual to a Public Charge Determination?

  • Cash assistance for income maintenance
  • Most Medicaid participation
  • Medicare Part D Low Income Subsidy for Elderly (prescription drugs)
  • SNAP (Supplemental Nutrition Assistance Program), i.e., food stamps
  • Long-term care at government expense
  • Section 8 Housing Choice Vouchers
  • Section 8 Project-Based Rental Assistance
  • Subsidized Public Housing

What are Some Benefits that Would Not be Considered?

  • Emergency Medical Assistance
  • Disaster Relief
  • National School Lunch Program
  • Head Start Program
  • Receipt of benefits by dependents alone

The 447-page rule is a complicated web of regulations. Critics feel that many low-income immigrants will bypass programs they or their children may be entitled to, afraid that availing those benefits will bar them from eventually becoming green card holders – even if those benefits are not covered by the new rule. “This [new rule] would force families — including citizen children — to choose between getting the help they need and remaining in their communities,” stated Diane Yentel, NLIHC president and CEO, in a Washington Post article about the rule. “The last thing the federal government should do is punish families that have fallen on hard times for feeding their children or keeping a roof over their heads and avoiding homelessness.”

Others, such as New York State legislators and Governor Jay Inslee of Washington, have reasoned that the new rule will have a sizeable financial impact on some states and that “the proposal disrupts settled law by making unprecedented changes to longstanding immigration policies. . . .” Still, others are contemplating to question the new rule in court on various grounds, including under the Administrative Procedure Act and under the equal protection clause of the Constitution. These are avenues that have been pursued with regard to the travel ban, TPS, and DACA.

Undocumented individuals are not qualified for most public benefits. The rule will affect only those immigrants who are legally in the U.S. or who wish to come to the U.S. legally.

The above is meant only to provide general guidance because of the complex nature of the new rule. If you need clarification on the effects of the rule, please contact the office of Virginia immigration lawyer Jeffrey Van Doren.