Update: Final Rule on Public Charge Inadmissibility

Practice Areas

By: Angelita Chavez-Halaka, Armando Escobedo, Gladys Gervacio

SUMMARY

On August 14, 2019, the U.S. Department of Homeland Security (DHS) will publish the final rule defining immigrant inadmissibility under the “public charge” provision of the Immigration and Nationality Act (INA) for individuals using public benefits. The final rule will go into effect 60 days (October 13, 2019) from publication in the Federal Register.

Which Public Benefits Affect Public Charge Inadmissibility?

Under the final rule, “public charge” is defined as individuals who receive one or more of the following government benefit programs for at least a total of 12 months within any 36-month period:

  • Cash Assistance for Income Maintenance
  • Supplemental Security Income (SSI)
  • Temporary Assistance to Needy Families (TANF)
  • Most Forms of Medicaid
  • Supplemental Nutrition Assistance Programs (SNAP)
  • Section 8 Housing Assistance under the Housing Choice Voucher Program
  • Section 8 Project Based Rental Assistance
  • Subsidized Public Housing

How Will Public Charge Inadmissibility be Determined?

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
  • Prospective immigration status
  • Expected period of admission
  • Sufficient affidavit of support

Which Cases Will the Rule Apply to?

USCIS will apply the new public charge rule when adjudicating applications for individuals seeking:

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

PLEASE NOTE: Applications that are pending with USCIS or received prior to October 15, 2019 will continue to be adjudicated under the 1999 Interim Field Guidance.

Exceptions to the Final Rule:

The final rule would not impact the following:

  • Service members that are enlisted or are in active duty with the U.S. Armed Forces, or in any of its Ready Reserve components; spouse and children of such service members
  • Children, including adopted children, who will acquire U.S. citizenship under INA 320, USC 1431
  • Refugees
  • Asylees
  • T-Visa Applicants
  • U-Visa Applicants
  • VAWA Applicants
  • Special Immigrant Juveniles

Can an Individual POst a Public Charge Bond?

USCIS may, in its discretion, offer an individual who is inadmissible only on the public charge ground to post a public charge bond of at least $8,100. The amount will change depending on the individual’s circumstances.

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