DHS Publishes a Final Rule on the Public Charge which Formally Codifies the Historical Understanding of this Term

Posted by Nishu Sharma | Sep 13, 2022 | 0 Comments

On September 08, 2022, the U.S. Department of Homeland Security (DHS) has issued a final rule, to be published in the Federal Register, that provides clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility. The rule restores the historical understanding of a ‘public charge' that had been in place for decades, until the prior Administration began to consider supplemental public health benefits such as Medicaid and nutritional assistance as part of the public charge inadmissibility determination.

Section 212(a)(4) of the Immigration and Nationality Act (INA) renders a noncitizen inadmissible if they are “likely at any time to become a public charge.”

A noncitizen who is deemed likely to become a ‘public charge,' meaning that they are likely to become primarily dependent on the government for subsistence, can be denied admission or lawful permanent residence (known colloquially as a green card). Prior to 2019, almost all non-cash government benefits such as Medicaid or nutrition assistance were excluded from consideration. The 2019 rule, which was ultimately vacated and is no longer in effect, resulted in a drop in enrollments in such programs among individuals who are not subject to the public charge ground of inadmissibility, such as U.S. citizen children in mixed-status households. The publication of this rule in the Federal Register avoids these effects by formally codifying the historical understanding of the term.

Under this rule, as under the 1999 Interim Field Guidance that was in place for most of the past two decades, a noncitizen would be considered likely to become a public charge if DHS determines that they are likely to become primarily dependent on the government for subsistence. This determination will be based on:

  • The noncitizen's “age; health; family status; assets, resources, and financial status; and education and skills,” as required by the INA;
  • The filing of Form I-864, Affidavit of Support Under Section 213A of the INA, submitted on a noncitizen's behalf when one is required; and
  • The noncitizen's prior or current receipt of Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.

DHS will not consider in public charge determinations benefits received by family members other than the applicant. DHS will also not consider receipt of certain non-cash benefits for which noncitizens may be eligible. These benefits include: Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children's Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.

DHS will develop a Policy Manual update to help USCIS officers apply this regulation fairly and consistently and to better inform the public about how the rule will be implemented.

The final rule will be effective on December 23, 2022 and was published in the Federal Register on September 9, 2022. DHS is currently making public charge assessments consistent with the statute and the 1999 Interim Field Guidance and will continue to do so until it implements the final rule for applications postmarked on or after the effective date.

We regularly update our blog section to acquaint the community with to latest changes in Immigration policies. Please note the information in this blog is for informational purposes only and is not intended to be nor should it be construed as legal advice. We can promptly and efficiently represent clients located anywhere in the US or abroad on US Immigration Policies. If you seek further clarification, don't hesitate to contact SanSha Law Office at [email protected] or call us at 469-777-6161.

About the Author

Nishu Sharma

Ms Nishu Sharma is the founder and Managing Attorney of SanSha Law Offices PLLC. It was founded on the principle and commitment to serve the people with the best service that we can provide. The firm has served clients from Texas and other states of the US. She has handled all kinds of complex im...

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