Proposed Rule on Public Charge Inadmissibility

Practice Areas

By Angelita Chavez-Halaka and Armando Escobedo

Summary

On September 22, the U.S. Department of Homeland Security (DHS) published a proposed rule regarding inadmissibility for usage of public benefits that would significantly impact individuals seeking legal admission to the U.S. known as “public charge.” We would like to stress that these changes are currently being reviewed and have not been adopted.

Receiving Benefits 

Under the proposed rule, individuals currently receiving the following government benefit programs or have received benefits in the previous 36 months, are subject to DHS public charge inadmissibility determination:

  • Cash Assistance
  • Medicaid
  • Medicare Part D Low Income Subsidy
  • Supplemental Nutrition Assistance Programs
  • Government sponsored benefits for institutional long-term care

Proposed Rule

DHS will determine inadmissibility based on the “totality of circumstances,” if at any time in the future, an individual is likely to become a public charge, weighed by the following factors at the time of the application:

  • Age
  • Health
  • Family status
  • Financial resources, including assets
  • Education and Skills

Where Would the Rule Apply?

Under the current language, USCIS would apply the new public charge ruling when adjudicating applications for individuals seeking:

  • Adjustment of Status to Lawful Permanent Residents
  • Seeking Visa Admission to the U.S.
  • Extension of Status
  • Change of Status

Exceptions Under Proposed Rule

The proposed rule would not impact the following groups:

  • Refugees
  • Asylees, Afghans & Iraqis with special immigrant visas
  • T-Visa applicants
  • VAWA applicants
  • Special Immigrant Juveniles
  • Immigrant service members of the U.S. Armed Forces
  • Benefits received by U.S. children of foreign parents

Once the proposed policy is officially published in the Federal Register, it will enter a 60-day public comment period. DHS will issue a finalized rule after carefully reviewing public comments. As always, we will continue to monitor this new rule.

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