FAQs on New Public Charge Rule

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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:

• People “seeking admission”. This will primarily affect people applying for visas at US consulates.
• People applying for Adjustment of Status (permanent residence) in the US.
• People already inside the US who need to extend or change a nonimmigrant status (e.g. extending L-1A status, changing from F-1 to H-1B, etc).

 
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:

• Health care coverage through Medicaid, except for treatment for emergency medical conditions (Medicaid programs run by the states have different names in different states. To see what Medicaid is called in your state, visit https://www.healthcare.gov/medicaid-chip-program-names/.)
• Supplemental Nutrition Assistance Program (SNAP/food stamps)
• Low-income subsidy (LIS) for prescription drug costs under Medicare Part D
• Rental assistance under Section 8 housing vouchers, Project Based Section 8, and Public Housing.

 
Benefits that will not be counted are:

• Emergency medical assistance
• Disaster relief
• National school lunch or school breakfast programs
• Foster care and adoption
• Head Start
• Child Health Insurance Program
• Earned Income Tax Credit or Child Tax Credit

 
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 foreign national is not a full-time student and is authorized to work but cannot show current employment, recent employment history, or a reasonable prospect of future employment. 
• The foreign national has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in total within any 36-month period, starting 36 months before the foreign national applied for admission or adjustment of status on or after Oct. 15, 2019.
• The foreign national has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is unlikely to be able to pay for this treatment.
• The foreign national has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.

 
The following factors would weigh heavily against a finding that a foreign national is likely to become a public charge:

• The foreign national has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for his or her household size. This 250% figure is twice the income requirement for the Affidavit of Support.
• The foreign national is authorized to work and is currently employed and has an annual income of at least 250% of the Federal Poverty Guidelines for a household of his or her household size.

• The foreign national has private health insurance appropriate for the expected period of admission, so long as the foreign national does not receive subsidies under Obamacare. 

 
 Is anyone exempt from the rule?
 
Yes. The public charge rule does not apply to:

• U.S. citizens, including those related to a foreign national seeking benefits.
• Most permanent residents, including permanent residents who apply for U.S. citizenship.
• Certain adoptees.
• Foreign nationals who are generally exempt from public charge grounds of inadmissibility. This includes asylees, refugees, victims of human trafficking, domestic violence and certain enumerated crimes, and Special Immigrant Juveniles.

 
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.

More information:
https://cliniclegal.org/resources/dhs-finalizes-public-charge-rule
https://www.federalregister.gov/documents/2019/08/14/2019-17142/inadmissibility-on-public-charge-grounds
https://www.uscis.gov/news/news-releases/uscis-announces-final-rule-enforcing-long-standing-public-charge-inadmissibility-law

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