By Vandana Marath

The Department of Security’s (DHS) recently posted a draft rule, which would impact legal immigrants who receive public benefits. The draft rule could change eligibility requirements to obtain a US visa or become a Legal Permanent Resident.

It is currently unclear whether the draft rule will become enforced policy.

What Are the Changes Between Current Policy and This Draft Rule?

United States Citizenship &

Immigration Services (USCIS) currently uses “public charge” to determine whether someone should be excluded from obtaining a visa or becoming a permanent resident. If a foreign national is found to be a public charge during their application to enter the US or adjust status, they cannot become Legal Permanent Residents or obtain a visa.

Public charge refers to people that are currently or likely to become “primarily dependent on the government” by receiving public assistance. The current definition focuses on cash-based programs and “long-term institutionalized” care only. The USCIS also currently defines “primarily dependent” on public assistance as “50% or more” dependency.

The proposed draft rule would change a how public charge is determined by:

• Changing the percentage of “dependency” on government assistance, likely making it lower
  • Including non-cash benefits in determinations for the first time

What Types of Public Benefits Would be Impacted?

The proposed rule would expand the definition of public charge to include the following types of public benefits:

• Any government assistance in the form of “cash, checks or other money transfers, or instruments”
• Government assistance, which is not cash, like “aid, services, or other relief,” where:
  • Eligibility is determined based on the individual’s means, or
  • Assistance is designed to help individuals “meet basic living requirements such as housing, food, utilities, or medical care” (applicable for some cash and non-cash public assistance)

Many public benefits could come under this scope which are not currently considered for public charge. These include:

• Subsidized health insurance through the marketplaces created by the Affordable Care Act
• The Children’s Health Insurance Program (CHIP)
• Supplemental Nutrition Assistance Program (SNAP)
• Women, Infants, and Children program (WIC)
• Housing Assistance

How DHS Would Determine Public Charge

In the draft rule, DHS states it will decide whether or not a foreign national is a public charge based on the “totality of [their] circumstances.”

DHS would weigh all the positive and negative considerations related to a foreign national’s:

• Age
• Health
• Family status
• Assets and resources
• Financial status
• Education and skills
• Any required affidavit of support
• Any other factor that may require consideration

For example, possessing health insurance is generally a positive factor in the “totality of circumstances” standard. However, having subsidized insurance would generally be heavily weighed as a negative.

Will the Draft Rule Be Passed?

It is unknown whether the rule will be made into policy. The draft rule will be published in the Federal Register with 60 days for comments and changes. It could take a long time before it becomes final rule, and the policy may not be the same at that time.

We recommend watching the situation as it develops. Remain in close contact with your Chugh, LLP immigration attorney for guidance.