Analyzing the Impact of the Final Rule on Public Charge Inadmissibility

For immigrants looking to apply for permanent residency sometime soon, the recent changes to the public charge designation are a serious concern. We already covered this topic when the issue was first brought up last year. In August of this year, the final rule was finalized and the policy will take effect October 15, 2019. Here are some important updates.

The rule includes a requirement that aliens seeking an extension of stay or change of status demonstrate that they have not, since obtaining the non-immigrant status they seek to extend or change, received public benefits over the designated threshold, as defined in the law:

The Immigration and Nationality Act (INA or the Act) renders inadmissible and therefore (1) ineligible for a visa, (2) ineligible for admission and (3) ineligible for adjustment of status, any alien who, in the opinion of the DHS (or the Departments of State (DOS) or Justice (DOJ), as applicable), is likely at any time to become a public charge.

This rule updates the previously more narrow definition of “public charge” to mean a person who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (note: receipt of two benefits in one month counts as two months). Importantly, applicants will not be penalized for use of these benefits by a spouse or child.

The new policy would expand the definition to include a wider range of common government benefits:

  • Benefits that have traditionally been counted under the public charge rule (SSI, TANF, general assistance, and long-term institutional care)
  • Supplemental Nutrition Assistance Program (SNAP) (also known as “Food Stamps”)
  • Section 8 housing and rental assistance
  • Federal housing subsidies
  • Non-emergency Medicaid benefits (with exceptions for children under 21, people with disabilities, pregnant women, and mothers within 60 days after giving birth)

The rule also gives the Department of Homeland Security the imperative to evaluate many other factors that supposedly affect someone’s likelihood of becoming a public charge:

  • Age: Applicants could be denied if they are younger than the minimum age for full-time employment (18), or older than the minimum “early retirement age” for social security purposes (61)
  • Health: If an applicant has a chronic medical condition that could affect an applicant’s ability to work, this may require a more thorough medical examination
  • Family size: Having more children or other dependents could now work against an applicant
  • Skills:  There will be an evaluation if the applicant has “adequate education and skills to either obtain or maintain employment”. This could cover things like education, employment history, any special license or specialized experience, and knowledge of English or other languages
  • Financial resources & profile: A new form is required called the “Declaration of Self-Sufficiency” (Form I-944), which would collect information intended to help evaluate whether the applicant is a “public charge” under the new, more expansive criteria outlined above. This is separate from the Affidavit of Support (Form I-864) you might already be familiar with. Beyond looking at an applicant’s income and assets, other factors like credit history, financial liabilities, and availability of health insurance will be considered.

The new public charge designation is effective for all applications filed after 12:00 a.m. Eastern Time on October 15, 2019.

Need help getting around these increasingly complex guidelines? I’m here to help! Contact me today to set up a consultation.