Written By: Melissa Chavin

The US Government Daily Journal, the “Federal Register” published the new rule by the Department of Homeland Security on the Public Charge Inadmissibility Grounds on August 14, 2019. It was 837 pages in the version published just before final publication. I am reading through that version and blogging my notes as I go. These notes would be helpful for anyone trying to get a quick summary of the issues covered by the rule and a hint to changes that will effect adjudications.

Public Charge Inadmissibility Grounds

Rule Title.  The new rule's title is "Public Charge Inadmissibility Grounds."  It will be reflected in 8 CFR 103, 212, 213, 214, 245 and 248.  The rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds.  It is a massive piece of regulation.  In the version, that I am reading, the Table of Contents take up six pages.  The table of acronyms/ abbreviations and forms takes up nearly three pages.

Rule Purpose.  These rules help an adjudicator to determine whether an alien applying for adjustment of status (A/S) or admission is inadmissible under INA section 212(a)(4) as likely at any time to become a public charge.

Definitions in the Rule.  The rule published in August 2019 defines “public charge” and “public benefit.” These words are not defined in the statute.

Totality of the Circumstances Test.  The rules look at the facts that the DHS will consider in the “totality of the circumstances” when they make a public charge inadmissibility determination.  In making inadmissibility determinations, together with an Affidavit of Support on Form I-864, the adjudicators are to consider the alien’s age, health, family status, assets, resources, and financial status, as well as education and skills. See INA Sec 212(4)(B)(i).

Other Items that the final rule address:

1/ the USCIS’s authority to issue public charge bonds under INA section 213 in the adjustment of status (A/S) context, and
2/ extension of status (E/S) or change of status (C/S) applicants need to demonstrate that they have not received a public benefit over a designated threshold since they obtained the NIV status that they seek to extend or change.

Exempted Foreign Nationals.  The rule does not apply to asylums, refugees or other vulnerable populations for whom the Congress set up exemptions from the public charge inadmissibility ground.

Waiver Available.  DHS may waive this ground of inadmissibility, at its discretion.

Some Protected Persons.  There are special provisions for other people who receive public benefits as well: members of US Armed Forces, their families, certain international adoptees, and the receipt of Medicaid for some: e.g., aliens under age 21, pregnant women (and recently delivered women for up to 60 days after giving birth), and for certain services funded by Medicaid under the Individuals with Disabilities Education Act (IDEA) or in a school setting.

Direct Beneficiaries Only. DHS will not consider public benefits that benefit an alien though they are received directly by someone else. The alien needs to be a listed beneficiary of the public benefit.

Policy Rationale.  The stated goal of the current rule:  The drafters sought to make sure that aliens are self-sufficient and do not rely on public resources for their needs.  Foreign nationals may rely on the resources of family, sponsors and private organizations.

Definition of "Public Charge"

Prior Definition of "Public Charge."  Under the prior rule from 1999, “public charge” meant a person who relied on public cash assistance for income maintenance or institutionalization for long term care at Government expense. This exempted from concern receipt or reliance on non-cash benefits like the Supplemental Nutrition Assistance Program (SNAP) or food stamps, Medicaid, and housing subsidies.

New Rule.  To consider someone a “public charge,” they will need to have received certain benefits which are on the designated list of “public benefits” such as Medicaid and subsidized housing, for more than 12 months in the aggregate in any three year period. Under this amount, the DHS officer can still consider receipt of the benefit in the totality of the circumstances.  Under the new rule, use of institutionalization for long term care at government expense and Medicare Part D LIS will not be designated a public benefit program that would make an alien inadmissible. 

Positive and Negative Factors

The new rule contains a list of negative and positive factors that DHS adjudicators will consider as they develop an opinion about whether the client is likely at any time to become a public charge. For example with regard to age, if someone is younger than 18 and older than 61, this will be considered a negative factor, and 18-61 years of age will be considered a positive factor. Unemployment for non-students is a heavily weighted negative factor, where the person also has no recent employment history or reasonable prospect of future employment.

Declaration of Self-Sufficiency on Form I-944

Under the new rule, applicants for adjustment of status must file a Declaration of Self-Sufficiency (Form I-944) with their Form I-485 to show that they are not likely to become a public charge. This form will be in addition to the Form I-864 Affidavit of Support. Failure to submit both forms will be grounds for denial or rejection of the Form I-485.

This topic will be continued in the blog as I read on.  The drafters estimated that a reader will take 16-20 hours to digest this new rule!