DHS Proposes New Public Charge Rule That Maintains Status Quo

The Department of Homeland Security is proposing a new public charge rule that would largely codify its existing policy on the public charge ground of inadmissibility. Consistent with longstanding policy, the new rule would deem a foreign national ineligible to receive a green card or visa stamp if they are determined likely to become primarily dependent on the government by either the receipt of public cash assistance for income maintenance or by long-term institutionalization at government expense. The proposal would not impose a public charge inquiry on nonimmigrant extensions and changes of status filed with USCIS.

The issue

The Department of Homeland Security (DHS) is proposing a new public charge rule that essentially mirrors its current policy on the public charge ground of inadmissibility. The new proposal will be published in the Federal Register in the coming days, but DHS has issued an early advance copy on its website.

Under the new proposed rule, a foreign national would be deemed likely to become a public charge, and therefore ineligible to receive a green card or visa stamp, if they are deemed likely to become primarily dependent on the government by either: (1) the receipt of public cash assistance for income maintenance; or (2) by long-term institutionalization at government expense. 

The proposal is based on longstanding USCIS public charge guidance dating from 1999. This guidance had been superseded by a 2019 Trump Administration public charge rule that imposed burdensome financial tests on applicants. The Trump-era rule was invalidated through litigation and then abandoned by the Biden Administration in March 2021 in favor of the 1999 guidance. However, several U.S. states continue to advocate for the reinstatement of the Trump-era rule. In November 2021, the U.S. Supreme Court granted writ of certiorari on the sole issue of whether certain U.S. states can intervene on behalf of the federal government in defending the 2019 public charge rule. The case is Arizona, et al., Petitioners v. City and County of San Francisco, California, et al., Case No. 20-1775. Arguments are scheduled for February 23, 2022.

Under DHS’s new public charge proposal, a foreign national’s past and current receipt of Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) cash assistance for income maintenance, and other state and local cash assistance for income maintenance may be considered to determine government dependence. Long-term institutionalization government assistance may include long-term assistance applied to nursing homes, as well as other forms of institutionalization, with some limitations in connection with Medicaid. As under the current public charge framework, assistance outside of these categories will not be considered public benefits. Also, under the new proposal, the public charge inquiry is not applied to nonimmigrant extensions of stay and change of status applications, as was the case in the 2019 Trump-era rule.

What’s next for the proposal

Upon publication of the public charge proposal in the Federal Register, DHS will accept public comments for a period of 60 days. After the comment period closes, the agency will review the feedback and prepare to issue a final rule. There is no set timeframe for publication of a final rule, but it is an Administration priority.