Final Rule on Public Charge

Final Rule on Public Charge Ground of Inadmissibility

On August 14th, 2019, U.S. Department of Homeland Security (USDHS) published the first of three new rules informing interviewing officers to deny U.S. residency based upon a finding that the non-citizen applicant is predicted to become a “public-charge” if allowed to enter the U.S. as an immigrant or non-immigrant.  The rule creates a broader definition of “Public Charge to also include receipt of one or more public benefits for more than 12 months within a 36-month period. Which public benefits trigger the Public Charge rule depends upon whether the non-citizen’s interview is located with U.S. Citizenship and Immigration Services (USCIS) in the United States or is located with U.S. Department of State (USDOS) at a U.S. Consulate abroad.  For both USCIS and USDOS residency interviews, public benefits considered in Public Charge determinations are:

●Supplemental Security Income (SSI)

●Temporary Assistance to Needy Families (TANF)

●State or local cash benefit programs for income maintenance

●Programs (including Medicaid) for long-term nursing home or mental health institution care.  

Our attorneys are following the Public Charge determination rule carefully and we are working closely with clients to know what to expect and how to avoid a public charge determination. 

For the full article, including a full list of programs reviewed for Public Charge determinations, please use this link to our website.

Immigration Officers will review the non-citizen applicant’s:

            ●Age               ●Assets           ●Family status            ●Education

●Health           ●Resources     ●Financial status         ●Skills

For processing in the United States, the interviewing USCIS Officer will deny residency to the non-citizen if their U.S. spouse and/or children received public benefits when the non-citizen is “the only source of income and assets” for the family.  It is important that the U.S. spouse and/or children be employed or some other source of income or assets.  For processing at the U.S. consulates, the interviewing Consular Officer will deny residency to the non-citizen even if the U.S. spouse and/or children have additional income or assets if they received public benefits. Receipt of public benefits is a “heavily negative factor.” Even if a co-sponsor submits an Affidavit of Support, it is only one factor and the Consular Officer can still find Public Charge. It is important the non-citizen show his or her income and assets combined with the income and assets of his or her spouse and children will exceed the poverty threshold.

The Public Charge rule does NOT apply to the following individuals:

●Applicants serving in active duty or in the reserves and their immediate family

●International adoptees

●Children applying for U.S. Citizenship

●Pregnant Immigrants

●Medicaid received by immigrants that are under age 21

● Refugee Status and Asylum Applicants

● Amerasian Entrants through EFRPAA of 1988

●Cuban and Haitian Entrants through IRCA of 1988

●NACARA Applicants of 1997

●Registry Applicants INA § 249

● Special Immigrant Juvenile Status Applicants

●Syrian Asylees through P.L. 106-378

●T Non-immigrant Status Applicants

●U Non-immigrant Status Applicants

●Violence Against Women Act (VAWA) Applicants

●Non-citizens who are already Conditional Residents or Lawful Permanent Residents

●U.S. Citizens who were Previously Immigrants to the United States

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