UNITED STATES: New Public Charge Regulations Expand Inadmissibility Criteria

February 5, 2020

A Department of Homeland Security (DHS) final rule expanding the types of public assistance that could cause foreign nationals to become ineligible for permanent residence and other immigration benefits took effect on 30 January 2020. The final rule was published in August 2019 and was due to take effect in October 2019, but was delayed by federal litigation. (DHS is still enjoined from implementing this final rule in the State of Illinois.)

Who is affected?

This regulatory change will affect foreign nationals who are applying for admission to enter the United States, those who are requesting an extension or change of nonimmigrant status while in the U.S., as well as applicants for lawful permanent residence through the United States Citizenship & Immigration Services (USCIS). However, DHS will not apply this final rule to applications postmarked (or submitted electronically) before 24 February 2020, and DHS will not consider public benefits received before 24 February 2020.

What has changed?

Under the Final Rule, USCIS will look at the factors required under the law by Congress – such as an alien’s age, health, income, education and skills, among others. These factors will be considered in determining whether the alien is likely at any time to become a public charge, and thus ineligible for benefits – including admission to the United States, extensions and changes of nonimmigrant status while in the United States, and eligibility for US permanent residence.

Specifically, the new rule redefines a public charge as “an alien who receives one or more public benefits… for more than 12 months in the aggregate within any 36 month period…” rather than the previous definition of an alien who is “primarily dependent on the Government for subsistence by either the receipt of cash assistance for income maintenance or institutionalization for long-term care at Government expense”.

In addition, DHS employees must now consider whether the individual has used or is likely to use a wider array of cash and non-cash public benefits, including but not limited to the following: Social Security Income (SSI); Temporary Assistance For Needy Families (TANF); federal, state or local cash benefits programs; Supplemental Nutrition Assistance Program (SNAP); public housing; and most forms of Medicaid. In determining whether a foreign national is likely to use such benefits, DHS employees are required to consider the totality of the applicant’s circumstances that could cause him or her to use public benefits. At a minimum, DHS employees must consider the following: the applicant’s age; health; family status; education and skills; and assets, resources and financial status.

DHS employees are instructed to negatively and heavily weigh factors such as medical conditions that will require medical treatment or institutionalization, or will interfere in the applicant’s ability to provide for himself or herself, attend school, or work, and lack of insurance or the resources to secure insurance. By contrast, DHS instructs that its employees should positively and heavily weigh the fact that an applicant is gainfully employed in legal activities and earns at least 250 percent of the Federal Poverty Guidelines for his or her household size.

Our Advice

Employers who may be affected are encouraged to contact a Newland Chase immigration specialist for case-specific advice.

For general advice and information on immigration and business travel to the United States, please contact us.