Updated 6 January 2021.  Written By: Melissa Chavin

The US Government Daily Journal, the “Federal Register” published a 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 in the Federal Register. The US Government under the Trump Administration dropped their pursuit of putting this rule into force of law while lawsuits were pending to enjoin it on 16 December 2020.  The Office of Information and Regulatory Affairs within the Office of Management and Budget reflected on his records that the rule was withdrawn from review.  This blog would still be helpful for anyone trying to get a quick summary of the issues covered by the defunct rule and a hint to policy changes that were being considered for immigrant visa and adjustment of status adjudications.  Applications will no longer be subject to this rule.

Likewise the US Department of State is adjudicating public charge and related affidavits of support on Form I-864 and I-134 as they have historically. (1)

Withdrawn Rule on Public Charge Inadmissibility Grounds

Rule Title.  The new rule's title was "Public Charge Inadmissibility Grounds."  It would have been reflected in the Code of Federal Regulations at 8 CFR 103, 212, 213, 214, 245 and 248.  The rule would have superseded the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds.  It was a massive piece of rule writing.  In the version, that I read, the Table of Contents took up six pages.  The table of acronyms/ abbreviations and forms took up nearly three pages.

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

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

Totality of the Circumstances Test.  The rules looked at the facts that the DHS was to consider in the “totality of the circumstances” when they made a public charge inadmissibility determination.  In making inadmissibility determinations, together with an Affidavit of Support on Form I-864, the adjudicators were 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 withdrawn rule addressed:

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.  Such applicants needed to demonstrate that they had not received a public benefit over a designated threshold since they obtained the non-immigrant visa status that they sought to extend or change.

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

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

Some Protected Persons.  There were special protections for other people as well: members of the 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 would not consider public benefits that benefit an alien though they were received directly by someone else. The alien needed to be a listed beneficiary of the public benefit.

Policy Rationale.  The drafters stated that they sought to make sure that aliens were self-sufficient and did not rely on public resources for their needs.  Foreign nationals could rely on the resources of family, sponsors and private organizations.

Definition of "Public Charge"

Definition of "Public Charge."  Under the rule from 1999, which will remain in effect now that this rule has been withdrawn, a “public charge” is limited in meaning to a person who relies on public cash assistance for income maintenance or institutionalization for long term care at Government expense. This definition exempts reliance or receipt of non-cash benefits like the Supplemental Nutrition Assistance Program (SNAP) or food stamps, Medicaid, and housing subsidies.

Withdrawn Rule.  To consider someone a “public charge” under the withdrawn rule, an alien would need to have received certain benefits which were 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 number of months, the DHS officer could still consider receipt of the benefit in the totality of the circumstances. 

Positive and Negative Factors

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

Declaration of Self-Sufficiency on Form I-944

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

Footnote

(1) Final Rule Governing Public Charge Grounds of Visa Ineligibility.  Statement made by US State Department 6 October 2023:  "The State Department’s regulation governing the public charge grounds of visa ineligibility has been restored to the version that was in place prior to October 11, 2019.  On October 11, 2019, the Department published an interim final rule (IFR), which substantially revised the regulations governing the grounds. The IFR was enjoined by the District Court for the Southern District of New York on July 29, 2020. Since that time, the Department has used Foreign Affairs Manual (FAM) guidance that was in place prior to the publication of the IFR.  The IFR was intended to align with the standards then applied by the U.S. Department of Homeland Security (“DHS”) to determine inadmissibility on public charge grounds. In 2022, DHS published a new Final Rule. As such, the IFR no longer meets the policy aim of consistency with DHS standards.  In reverting to regulatory text that was in place prior to the publication of the IFR, the Department is again more closely aligned with the current DHS standards."