DHS issues New Public Charge Rule Subjects Adjustment Applicants and Non-Immigrants to Higher Scrutiny

On August 14, 2019, the Department of Homeland Security (DHS) published a final rule related to public charge in the Federal Register. According to DHS, the rule will not take effect until October 15, 2019. Additionally, many organizations have indicated they will file lawsuits challenging the legality of the rule. Thus, even after publication, legal challenges could delay implementation.

The rule will impose strict new standards for determining whether an applicant is a “public charge.” The new regulation will also broaden the class of foreign nationals subject to public charge review to include non-immigrants, and will lengthen the list of public benefits considered in the review. The rule gives immigration officers broader discretion when assessing whether an applicant for adjustment of status is likely to become a public charge in the future. According to the Department of Homeland Security, the rule is intended to ensure that applicants for admission to the United States are “self-sufficient”.

Public benefits covered by the rule

Under the rule, a foreign national may be deemed inadmissible as a public charge if he or she has received one or more covered public benefits for more than an aggregate of 12 months within any 36-month period. The benefits considered in a public charge analysis are:

• Federal, state, local or tribal cash benefits for income maintenance (including SSI or TANF);
• The Supplemental Nutrition Assistance Program (SNAP, or food stamps);
• Certain federal housing benefits, including Section 8 Housing Assistance or Project-based Rental Assistance; and
• Medicaid (with some exceptions listed below).

The following are among those not considered public benefits for purposes of the public charge rule:

• Federal or state retirement benefits, including Social Security retirement benefits;
• Social Security disability benefits;
• Unemployment benefits, and other benefits that an individual earns through payroll tax and other tax deductions;
• Health insurance tax credits under the Affordable Care Act;
• Medicare benefits;
• Medicaid received by persons under 21, pregnant women, women up to 60 days after the last day of pregnancy, and persons with emergency medical conditions;
• The Children’s Health Insurance Program (CHIP);
• School-based services for primary and secondary students, including lunches; and
• Disaster relief benefits.

Benefits received by a spouse, child or any other person would not be counted against the principal applicant, unless the principal is also listed as a recipient of the benefit. Also, in certain circumstances, the covered public benefits received by members of the armed forces and their families, and by children acquiring U.S. citizenship under the Child Citizenship Act of 2000 will not be counted against them.