Public Charge Update

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Supreme Court Allows DHS to Move Forward with Public Charge Changes

Key Takeaways

Last week, the Supreme Court announced that the Department of Homeland Security (DHS) can move forward with its final changes to the public charge ground of inadmissibility. The regulations are over 800 pages long and represent a vast expansion of the public charge ineligibility.

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Summary/Bottom Line: Do Not Panic

Effective Date and Current Applications

The rules do not go into effect until February 24, 2020, so anyone who used these services prior to that date or has a current application in the system is unaffected.

No Automatic Denial

Mere use of the benefits does not lead to an automatic denial. Instead, use of these programs is considered a “negative factor” in a long list of positive and negative factors to be analyzed by officers.

Ignore Media Sensationalism

Please do not read the newspapers or listen to the media on this. The people who write these stories have no, or limited, background knowledge of immigration, and their goal is always clickbait and panic.

Health Insurance Requirement

NOTE: This rule has nothing to do with the requirement to have health insurance, which is still currently blocked.

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What Is the Public Charge?

Definition and Legal Basis

“Likely at any time to become a public charge” is a ground for USCIS officers domestically and Visa officers abroad to block entry of a visa applicant who they believe will use government benefits. The law is in the Immigration and Nationality Act § 212(a)(4).

Historical Context

The law itself is hundreds of years old, but after a 1999 regulation by USCIS, it has largely been dormant. Prior to the 1999 regulation, upwards of 15-20% of all immigrant petitions were rejected due to the public charge inadmissibility.

Totality of Circumstances Test

Under the law, officers look at the “totality of the circumstances”—your age, income, and personal financial situation—to determine whether you are likely to come to the U.S. and use government benefits.

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What Are the Rules Now?

Expanded Definition of Public Charge

The term “likely at any time to become a public charge” has been expanded, and new positive and negative factors have been added to the “totality of the circumstances” test.

New Criteria for Benefits Usage

First, it is to be applied to those who are more likely than not to receive any of these benefits for more than 12 months in the aggregate within any 36-month period.

Expanded List of Considered Programs

DHS has expanded the list of identified programs that can be considered when applying the public charge test. Use of the following programs AFTER February 24, 2020, will now be considered:

• Non-emergency Medicaid
• Supplemental Nutrition and Assistance Program (SNAP, formerly food stamps)
• Section 8 Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance
• Public Housing

Exclusions for Family Members

Benefits received by the applicant’s U.S. citizen children or other family members are not considered in determining whether the applicant is likely to become a public charge.

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How Will the Officer Analyze My Situation?

Shift in Focus

In determining public charge inadmissibility, the regulation shifts attention away from the petitioning sponsor’s income as reported on the affidavit of support and redirects it to the five statutory factors:

1. Age
2. Health
3. Family status
4. Assets/resources/financial status
5. Education/skills

Weighting of Factors

Adjudicators will assign weight—negative and positive, as well as heavily negative and heavily positive—to these five factors to determine whether the applicant passes the public charge test.

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Are There New Forms?

Effective Date

The new public charge rule and procedure will affect I-485 applications filed or postmarked (or, if applicable, submitted electronically) on February 24, 2020.

Pending Applications

Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on the current public charge standard.

Potential Retroactive Application

There is a chance that people who used these services prior to February 24, 2020, may have to submit the I-944 form.

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Will This Affect Both Adjustment of Status and Consular Processing?

Application to Consular Processing

Although the published rules refer to public charge inadmissibility adjudications by USCIS, the Department of State is expected to adopt these same standards to apply to those applying for immigrant and nonimmigrant visas abroad. In fact, the Department of State in several posts has already been using the public charge.

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So If I Use One of These Government Programs, Will I Be Rejected as a Public Charge?

Totality of Circumstances

Not necessarily. This is about the “totality of the circumstances.” For example, if you used Medicaid, that would count as a point against you. However, if you speak English, only used it for a brief period, and have other evidence that you are “self-sufficient,” those will be points in your favor to overcome your use of Medicaid.

Positive Factors

If you have a strong credit score, are authorized to work, and have strong savings, those will be points in your favor. Each case will be unique in how it is analyzed, and our law firm partners will ensure that all applicants are well-prepared.

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What About Obamacare or Emergency Medical Assistance?

Excluded Programs

No. The final rule does not include receipt or potential receipt of the following benefit programs:

• 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

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Final Thoughts

Patience and Preparation

As time goes on and the program further develops, we’ll be able to provide more answers to more questions. In the meantime, we ask that you be patient.