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The New Public Charge Rules: What Employers and Foreign Nationals Need to Know

Starting February 24, 2020, foreign nationals applying for adjustment of status to permanent residence will be subject to a new Department of Homeland Security (DHS) regulation that redefines the test for the “public charge” ground of inadmissibility. On the same day, nonimmigrants will become subject to a new public charge condition on their ability to change or extend nonimmigrant status.

The new public charge requirements will affect most USCIS Form I-485 adjustment applications and Forms I-129 and I-539 applications to change or extend nonimmigrant status postmarked on or after February 24, 2020, with some exceptions. Adjustment applicants will be required to disclose a great deal of personal financial information and related documentation. Applicants for a change or extension of nonimmigrant status will be required to disclose whether they have accepted or been certified to receive certain government benefits. 

What is a “public charge”?

U.S. immigration law has long permitted the government to find a foreign national inadmissible as a “public charge” if it determines he or she is likely to become financially dependent on the U.S. government at any time in the future. The public charge ground of inadmissibility applies to foreign nationals applying for lawful permanent residence (a “green card”) through the adjustment of status process, for immigrant and nonimmigrant visas at U.S. consulates abroad, and for admission to the United States at the U.S. border or port-of-entry. Some foreign nationals are exempt from the public charge ground of inadmissibility, such as those seeking asylum or refugee status in the United States.

How was public charge interpreted previously and what has changed under the new rule?

Under previous guidance, generally a person was deemed a public charge only if the government determined that he or she was likely to become primarily dependent on the U.S. government through the receipt of cash assistance or benefits for long-term institutionalization. The government would not consider any other type of benefit when reviewing whether a foreign national was likely to become a public charge. This existing policy will remain in place for several groups of applicants, as discussed below. In the new rule, DHS has expanded the definition of public charge to include foreign nationals who use a much broader set of public benefits – including some non-cash benefits – for more than 12 months in a 36-month period. For foreign nationals seeking adjustment of status in the United States, the new rule also imposes a complex and more subjective “totality of the circumstances” test to determine whether a foreign national might become a public charge at any time in the future.

The rule also broadens the public charge inquiry to certain nonimmigrants in the United States seeking to extend or change their temporary status through USCIS. This class of foreign nationals had not previously been subject to public charge scrutiny when filing for extensions and changes of status but must now answer questions and provide documentation in connection with their receipt of certain public benefits. For this group, the rule creates a “public benefits condition” requiring foreign nationals to establish that, starting on February 24, 2020 (and since obtaining their current nonimmigrant status), they have not received or been certified to receive certain benefits for more than 12 months in a 36 month period.

Are lawful permanent residents subject to the new public charge definition?

The new rule primarily affects adjustment of status applicants and nonimmigrants who are seeking a change or extension of their status while in the United States. The rule may also affect certain lawful permanent residents seeking admission to the United States, including those applying to enter after being out of the country for more than 180 days. However, it is not clear how Customs and Border Protection (CBP) officials might enforce the new standard with respect to these U.S. lawful permanent residents and no guidance has been provided. The DHS rule focuses almost exclusively on foreign nationals applying for benefits from within the United States through U.S. Immigrant and Citizenship Services (USCIS).

Who is not affected by the new DHS public charge rules?

The following classes of foreign nationals are not subject to the new rules:

  • Groups legally exempt from public charge: Several classes of foreign national are exempt from the public charge ground of inadmissibility and thus are not affected by the new rule. This includes refugees, asylees, certain crime and trafficking victims, and other special humanitarian categories.
  • Visa applicants: The DHS rule does not apply to foreign nationals seeking a visa from a U.S. Embassy or consulate abroad. However, a very similar Department of State regulation is slated to take effect for visa applicants in the near future. The State Department issued its own public charge rule in October 2019, but decided to delay implementation until a new form and process are finalized. The agency has obtained approval of the new form and is expected to begin implementation of its public charge rule shortly.
  • Green card renewal applicants: Lawful permanent residents applying to renew their Permanent Resident Cards are also not affected by the public charge rule. Green card holders who travel abroad for more than 180 days, however, could be subject to a public charge review, as noted above.
  • Naturalization applicants: The new rule also does not affect naturalization applicants, unless there was error or misrepresentation in connection with a public charge determination in their green card adjudication. There is no additional public charge inquiry at the naturalization stage.

What happens to adjustment applications and change/extension of status nonimmigrant petitions that are pending on February 24, 2020?

The new public charge rule will only be applied to applications and petitions postmarked on or after February 24, 2020. Applications submitted before that date will be adjudicated under the old public charge standards and procedures, discussed above.

What are the public benefits DHS will consider in its public charge determination?

The expanded definition of public charge includes a wide range of public benefits, not just cash assistance and long-term institutionalization. A foreign national who accepts or has been certified to receive any of the following public benefits may be subject to further scrutiny of their eligibility to adjust status or obtain a nonimmigrant change or extension of status:

  • Federal, state, local or tribal cash assistance for income maintenance (including Supplemental Security Income, Temporary Assistance to Needy Families, and any general cash assistance for income maintenance);
  • Federally-funded Medicaid (with exceptions for those under age 21, pregnant women and women up to 60 days after the last day of pregnancy, as well as for certain emergency and education-related services);
  • Supplemental Nutrition Assistance Program (SNAP, or food stamps);
  • Section 8 Housing Assistance under the Housing Choice Voucher Program;
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); and
  • Public Housing under Section 9 of the U.S Housing Act of 1937. In order for cash assistance to be considered a public benefit under the new rule, USCIS policy guidance states that the benefit must be:
    • received in cash or cash equivalent, such as a debit card or check;
    • for a non-specific purpose – for example, the person would be able to use it for food, nutrition, or housing, etc.;
    • means-tested, meaning granted based on an income threshold; and
    • not otherwise explicitly excluded by USCIS in its public charge policy guidance.

What if a foreign national accepted public benefits for a short time only? How does the government calculate the length of time a foreign national has received benefits?

The government will look to see if a foreign national has received one of the covered benefits for more than 12 months in the aggregate within a 36-month period. If a foreign national has received more than one covered benefit in one month, the government counts each additional benefit as another month of receipt. Therefore, if a foreign national receives two benefits in one month, it is counted as receipt of two consecutive months of benefits.

Does the rule cover every type of government benefit? Are there any public benefits that are not considered under the new rule?

In its agency policy guidance, USCIS has identified some benefits that are specifically excluded from consideration as a public benefit. For example, the agency explicitly states that it will not consider any tax-related cash benefit such as the Earned Income Credit or the Premium Tax credit, to be a covered benefit under the new standard. The agency also provides a non-exhaustive list of benefits excluded because they are considered earned benefits. These include:

  • Unemployment benefits;
  • Worker’s compensation;
  • Social Security retirement benefits;
  • Medicare;
  • Federal Old-Age, Survivors, and Disability Insurance Social Security benefits (SSDI);
  • Veteran’s benefits including but not limited to HUD-VASH, and medical treatment through the Veteran’s Health Administration;
  • Federal or state government pension benefits and healthcare;
  • Federal and state disability insurance; and
  • Any state-funded non-cash benefit, including health insurance or social services programs.

Further, USCIS provides a non-exhaustive list of a number of other benefits excluded from public charge review, including some commonly used programs listed below: • Health Insurance through the Affordable Care Act (ACA);

  • Provide a unique e-mail address for the account.
  • Create a password
  • Children’s Health Insurance Program (CHIP) and State Children’s Health Insurance Program (SCHIP);
  • Tax credits;
  • Special Supplemental Nutrition Program for Women, Infants, and Children (WIC);
  • Student loans and home mortgage loan programs;
  • Foster care and adoption benefits;
  • Educational benefits, including, but not limited to, benefits under the Head Start Act;
  • Benefits through school lunch or other supplemental nutrition programs:
  • Short-term, non-cash, in-kind disaster-relief programs;
  • Programs, services, or assistance provided by local communities or through public or private nonprofit organizations, such as soup kitchens, crisis counseling and intervention, and short-term shelter;
  • Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases;
  • Summer Food Service program;
  • Childcare related services including the Child Care and Development Block Grant Program (CCDBGP);
  • Transportation vouchers or other non-cash transportation services;
  • Certain housing assistance and energy benefits programs.

How will USCIS apply the public charge rule to adjustment of status applications?

For adjustment of status applicants, USCIS will apply a forward-looking “totality of the circumstances” test to determine the likelihood of the foreign national becoming a public charge at any time in the future. The totality test takes into account the following factors, at a minimum, for each applicant:

  • Age;
  • Household size;
  • Assets, resources and financial status, including a review of the applicant’s income, assets, liabilities, as well as their application for or receipt of certain public benefits;
  • Health; and
  • Education and skills.

To apply this public charge totality test, USCIS will require applicants to complete a new 18- page Form I-944, Declaration of Self-Sufficiency and submit detailed documentation in support of the information provided.

Unlike the prior adjustment of status process, applicants will be required to provide a credit report and credit score (or if none exists, proof of continued payment of bills); evidence of assets and liabilities like mortgage, credit card debt, and education loans; and detailed information about health insurance coverage, among other documents.

The totality test also includes a review of any health conditions that may render an applicant unable to care for him- or herself. If your routine green card medical exam results in negative findings about a health condition, you may need to submit extra health or financial documentation to outweigh that negative factor.

I am applying for a green card through my employer. Does this rule apply to me?

Yes, this rule applies to employment-based green card applications. While a reasonable salary and employer-provided health insurance with minimal other “negative” public charge factors would likely suffice to prevent a public charge finding, employment-based adjustment applicants will still need to comply with all the information and documentation requirements of Form I-944. The new rule requires more detailed and personal information than most employment-based adjustment applicants have been accustomed to providing in connection with prior immigration processes.

What are some positive and negative factors in the public charge totality test?

In general, positive factors include being of working age, being healthy, and earning an income or having access to resources sufficient to meet all financial obligations. Having the education and skills to earn that kind of income is also a positive factor.

One positive factor in the totality test is a household income of at least 125% of the Federal Poverty Guidelines (FPG). For 2020, 125% of the FPG for a household of one is $15,950; for a household size of four, it is $32,750.

Negative factors can include low income, poor credit, financial liabilities and obligations not outweighed by the household’s financial resources, lack of employability and having a medical condition that requires extensive treatment.

Certain factors are also identified in the public charge rule as “heavily weighted” positive or negative factors. For example, having an income or household resources exceeding 250% of the Federal Poverty Guidelines, or having private health insurance with no Affordable Care Act tax credit are considered heavily weighted positive factors. Having a medical condition likely to require extensive treatment may be a heavily weighted negative factor if the foreign national does not have health insurance and is unable to pay for related medical costs. But even these will not alone determine whether someone is deemed a public charge.

How will the new rule affect government processing times?

The new public charge rule adds a complex layer of analysis to adjustment of status applications. Employers and foreign nationals should expect adjustment of status processing times to increase as a result.

Are nonimmigrants in the United States subject to the public charge ground of inadmissibility?

Nonimmigrants in the United States are not subject to the public charge ground of inadmissibility. However, the public charge rule imposes a new “public benefits condition” on nonimmigrants seeking to extend their stay or change their status from within the United States. This condition is much less impactful than the public charge totality test but does require some changes to the current Form I-129 and Form I-539 extensions and changes of status process.

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