New Public Charge Rule Could Limit Immigration

By Reuben Seguritan


The Department of Homeland Security published on August 14, 2019 a final rule changing the standard to be used in determining whether a person who seeks to be admitted or to adjust status is likely to become a public charge and therefore inadmissible to the US. A public charge is an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of 2 benefits in 1 month counts as 2 months).


The United States Citizenship and Immigration Services (USCIS) will apply the “totality of the circumstances” test which considers all of the factors in totality to determine whether a person will become a public charge. Furthermore, any money or benefit received from programs that are entirely funded by private entities are not considered in its determination.


By law, however, some people are exempt from public charge or may apply for a waiver of the public charge ground of inadmissibility when applying for admission or adjusting status to the United States. These are refugees, asylees, Special Immigrant Juveniles (SIJs), people applying to renew Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), applicants for humanitarian forms of relief such as U visa (Victims of Qualifying Crimes), T visa (Victims of Human Trafficking), or under Violence Against Women Act (VAWA).


The programs considered in the public charge determination are: 1. Cash assistance for income maintenance including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) (which may have other names in different states), Supplemental Nutrition Assistance Program (SNAP), State and local cash assistance programs (often called “General Assistance” programs), federal or tribal benefits in cash, and housing programs which are Section 8 Housing Assistance under the Housing Choice Voucher Program, Section 8 Project-Based rental Assistance and public housing; and 2. Institutionalization for long-term care at government expense in a nursing home or mental health institution and covered by Medicaid.


The decision of the USCIS must be based on the evidence in the record of specific circumstances at the time of the person’s application. At a minimum, the USCIS will consider the factors of: applicant’s age, health, family status, assets, resources, financial status, education and skills, any Affidavit of Support (Form I-864) submitted, prospective immigration status and period of admission. The presence or absence of one of these factors should not be the sole criteria for determining whether the applicant will likely become a public charge. The USCIS will look at whether the applicant is incapable of earning a livelihood; does not have sufficient funds in the US for his support; and has no person in the US willing and able to assure that he will not need public support, and therefore is inadmissible as likely to become a public charge.


The USCIS can deny the application on the ground of likelihood of becoming a public charge if it finds some specific circumstance such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the applicant is likely to be cast on the public. The evidence must indicate permanent personal conditions in the applicant’s case that cannot be remedied and cannot be based on circumstances beyond the control of the applicant which temporarily prevent him from joining the workforce such as an injury from an accident which will heal in time.


The USCIS, in its discretion, may permit an adjustment of status applicant who is inadmissible only on the public charge ground to adjust status to that of a legal permanent resident upon posting of a public charge bond. The minimum bond amount is $8,100. The actual bond amount will be dependent on the applicant’s circumstances and can be higher than $8,100.


The USCIS will also look at whether the applicant has been able to work in the past or has potential to work in the future. The USCIS should not deny the application if the applicant is of working age and healthy enough to work. The application cannot be denied if the applicant does not have a job but does have sufficient funds or assurances of support by relatives or friends in the US.