On August 14, 2019, the Department of Homeland Security posted the Final Rule on the new provisions related to public charge. The new rule will apply many people, whether they are filing for an immigration benefit based on employment or a family relationship.
We are still analyzing the rule, which was just published today, so please check back for updates.
When does the rule take effect?
October 15, 2019. The new definition of public charge will not apply to cases that were filed before that date. In addition, DHS will not penalize people who received benefits before October 15
What is a “public charge”?
The term “likely at any time to become a public charge,” has always been is a ground of inadmissibility (a reason to deny an immigration benefit) in the Immigration and nationality Act (INA). Up to now, the term was limited to people who were primarily dependent on cash benefits or in government-funded, long-term institutional care. The type of benefits were limited to Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance, as well as a Medicaid program that covers the institutionalization mentioned above.
What applications are affected by the law?
The “public charge” rule applies to:
How does the new rule change the “public charge” definition?
The new rule makes some very important changes to the analysis of “public charge.”
1. DHS may now consider that someone is a public charge if they are “more likely than not” to receive the listed benefits for more than 12 months total within any 36-month period. A person who gets two benefits in one month is considered to have used two months of benefits. Chillingly, the FAQs on USCIS web page expand this, saying that “…because a public charge inadmissibility determination is prospective in nature, in the totality of the circumstances, any duration (and amount) of public benefits received may be considered in the totality of the circumstances.”
2. DHS has expanded the list of benefits that could disqualify a person. In addition to the benefits already counted, DHS will consider:
Benefits that will not be counted are:
Benefits received by the applicant’s U.S. citizens children or other family members are not considered unless the foreign national is also listed as a recipient.
3. The rule gives officers broad discretion to consider additional factors in determining whether a foreign national is likely to become a public charge. These factors include age, health, family status, assets/resources/financial status, and education/skills. Other factors that DHS will consider include the foreign national’s prospective immigration status and expected period of stay (immigrant or non-immigrant).
How can these discretionary factors be viewed?
The following factors will generally weigh heavily in favor of a finding that a foreign national is likely at any time to become a public charge:
The following factors would weigh heavily against a finding that a foreign national is likely to become a public charge:
Is anyone exempt from the rule?
Yes. The public charge rule does not apply to:
What if I am deemed to be likely to be a “public charge”?
Foreign nationals may be able to post a public charge bond of at least $8,100 to avoid a public charge determination. The bond may be cancelled only upon the immigrant’s death, permanent departure, five years as a lawful permanent resident, or naturalization. The bond will be considered breached if the immigrant receives any of the cash or non-cash programs identified above for more than 12 months in the aggregate within any 36-month period.
The draft bond form I-945 is here and instructions are here.
I filed an Affidavit of Support – doesn’t that help?
It does help. It is one of many factors that DHS will consider. The likelihood that the sponsor on the I-864 will really be able to support the foreign national is important.
Does Obamacare count as a benefit?
Yes and no. DHS says that it won’t consider subsidies under the Affordable Care Act as public benefits, BUT private health insurance is one of the “heavily-weighted positive factors.” In other words, you won’t be penalized for using Obamacare subsidies, but it you had health insurance without them, it would be better.
Are there any new forms?
All applicants for Adjustment of Status (employment and family cases) will need to complete a Form I-944, Declaration of Self-Suffiency. USCIS has discretion to ask non-immigrant beneficiaries to also complete this where necessary.
The Form I-944 collects information such as age; health; family status; assets, resources and financial status; and education and skills. DHS estimates that it will take applicants 4.5 hours to complete this.
Draft Form I-944
Form 944 instructions
What should I do now?
If you are considering filing any petition or application with immigration, do it now, before October 15. If you can’t file before October 15, analyze any benefits that you are receiving to see if they are listed above.
For any questions about the new rule, how it might affect you, and how you can file applications before the rule takes effect, please contact immigration attorney Elaine Martin.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.