The Department of Homeland Security’s new public charge final rule takes effect on December 23, 2022. It largely codifies a longstanding policy on the public charge ground of inadmissibility. The 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. Upon implementation of the new rule, adjustment of status applicants will complete a revised Form I-485 adjustment of status application, which will require information on assets, liabilities, resources and financial status, among other information relating to public charge analysis.
The Department of Homeland Security (DHS) has released a public charge final rule that essentially mirrors its current policy on the public charge ground of inadmissibility. The rule will be published in the Federal Register on September 9, 2022 and will become effective 105 days later, on December 23. An advance copy of the rule is available on the Federal Register website.
Under the DHS public charge 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 rule commentary clarifies that “primary dependence” on the government is meant to connote significant reliance on the government for support, meaning more than dependence that is transient or supplementary.
The rule is largely 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 This guidance had been superseded by a 2019 Trump Administration public charge rule that imposed burdensome financial tests and documentation requirements on applicants.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. Several U.S. states continued to advocate in the courts for the reinstatement of the Trump-era rule, but these efforts have been unsuccessful thus far.
DHS then released its new public charge proposed rule in February 2022, largely mirroring the 1999 Interim Field Guidance. The new public charge rule released today is the final version of that proposal.
A closer look
Under the new rule, a determination of a foreign national’s likelihood of becoming a public charge will be based on a DHS analysis of the totality of the circumstances, taking into consideration the factors set forth in the Immigration and Nationality Act provision addressing the public charge ground of inadmissibility, which include a foreign national’s age; health; family status; assets, resources and financial status; education and skills; and a Form I-864 affidavit of support in cases where the form is required.
In connection with the financial status factor, applicants will be required to provide information on their assets, liabilities, resources, and receipt of certain public benefits, but will not be required to provide credit history information as the Trump-era regulation mandated. Any 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 in order to determine their likely dependence on the government. DHS may also consider long-term institutionalization government assistance (including Medicaid used for this purpose in certain circumstances), which may include long-term assistance applied to nursing homes, as well as other forms of institutionalization. As under the current public charge framework, however, assistance outside of these categories will not be considered as public benefits under the new rule. The rule also clarifies that receipt of benefits on behalf of another will not be considered in a public charge determination.
Prior to the public charge rule’s effective date on December 23, 2022, DHS will revise its Form I-485 application for adjustment of status to request information from the applicant regarding the factors used in the public charge analysis. No initial supporting evidence will be required in a typical adjustment of status application, except for the submission of a Form I-693 medical exam in connection with the health factor. However, DHS will consider any documentation applicants choose to submit as supporting evidence, and the agency may request evidence at a later time if deemed appropriate.
What’s next for the public charge rule
In addition to revising the Form I-485 prior to implementation of the public charge rule, DHS says that it will conduct public outreach before the effective date, in order to minimize any risk of confusion around the rule and its impact. Adjudication guidance will also be issued by DHS to its officers in the coming months in order to inform their totality of the circumstances determinations under the new rule.
Policy and law surrounding the public charge ground of inadmissibility have been vigorously debated and challenged in recent years, so court challenges to the rule cannot be ruled out, including those that may be initiated by supporters of the 2019 Trump-era rule.
Impact on adjustment of status applicants
Upon implementation of the new public charge rule, adjustment of status applicants will be asked to provide further information regarding their household’s assets, liabilities, and financial status, among other factors.