Public Charge Inadmissibility

The Department of Homeland Security published a final rule, outlining how DHS will determine whether an applicant for adjustment of status is inadmissible because the noncitizen is “likely at any time to become a public charge.” This final rule define the terms DHS will use in applying the rule, and explains the factors DHS will consider “in the totality of the circumstances” when making a determination of inadmissibility on public charge grounds. Under the rule, USCIS will also have authority to issue public charge bonds in the context of application for adjustment of status. Under the rule, the DHS introduced a new form, I-944 Affidavit of Self-Sufficiency, which must be included in applications for extension of stay or change of status. In this form, the applicants must show that since obtaining the nonimmigrant status they seek to exchange or change, they have not received public benefits over the threshold that triggers a finding of public charge.

The rule does not penalize the past, current, or future receipt of public benefits by U.S, citizen or exempted noncitizens (including refugees, asylees, VAWA applicants, T and U visa applicants and others). Under the rule, DHS will only consider public benefits that the noncitizen received directly, and will not consider benefits that the noncitizen requested on behalf of another. DHS will not attribute receipt of public benefits by the noncitizen’s household members, unless the noncitizen is also a recipient. The rule becomes effective at 12:00 a.m. Eastern Time on October 15, 2019, and apply prospectively to petitions and applications postmarked on or after the effective date.

What is a Public Charge?

Public Charge means an noncitizen who receives one or more public benefits, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

Which Benefits are Public Benefits?

1. Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
   1. Supplemental Security Income
   2. Temporary Assistance for Needy Families (TANF)
   3. Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names);
2. Supplemental Nutrition Assistance Program (SNAP)
3. Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD
4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937
5. Medicaid, except for
   1. Benefits received for an emergency medical condition if such care and services are necessary for the treatment of an emergency medical condition of the noncitizen, such noncitizen otherwise meets the eligibility requirements for medical assistance under the State plan approved under Medicaid, such care and services are not related to an organ transplant procedure. “Emergency medical condition” means a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result In placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.
   2. Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act
   3. School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;
   4. Benefits received by an noncitizen under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
6. Public Housing under section 9.
7. Public benefits do not include public benefit received by an noncitizen who at the time of receipt of the public benefits, or at the time of flling or adjudication of the application for admission or adjustment of status, or application or request for extension of stay or change is (i) Enlisted in the U.S. Armed Forces, or is Serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or (iii) Is the spouse or child, of such noncitizen.
8. In a subsequent adjudication for a benefit for which the public charge ground of inadmissibility applies, public benefits, as defined in this section, do not include any public benefits received by an noncitizen during periods in which the noncitizen was present in the United States in an immigration category that is exempt from the public charge ground of inadmissibility by law or regulation, or for which the noncitizen received a waiver of public charge inadmissibility.
9. Public benefits do not include any public benefits that were or will be received (i) Children of U.S. citizens whose lawful admission for permanent residence and subsequent residence in the legal and physical custody of their U.S. citizen parent will result automatically in the child’s acquisition of citizenship; or (ii) Children of U.S. citizens whose lawful admission for permanent residence will result automatically in the child’s acquisition of citizenship upon finalization of adoption (if the child satisfies the requirements applicable to adopted children; or (iii) Children of U.S. citizens who are entering the United States for the purpose of attending an interview to become U.S. citizens.

Who are the Members of an Noncitizen’s Household?

The Noncitizen Household if the noncitizen is 21 or older or under 21 and married includes: (i) The noncitizen; (ii) The noncitizen’s spouse, if physically residing with the noncitizen; (iii) The noncitizen’s children physically residing with the noncitizen; (iv) The noncitizen’s other children not physically residing with the noncitizen for whom the noncitizen provides or is required to provide at least 50 percent of the children’s financial support, as evidenced by a child support order or agreement a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the noncitizen; (v) Any other individuals (including a spouse not physically residing with the noncitizen) to whom the noncitizen provides, or is required to provide, at least 50 percent of the individual’s financial support or who are listed as dependents on the noncitizen’s federal income tax return; and (vi) Any individual who provides to the noncitizen at least 50 percent of the noncitizen’s financial support, or who lists the noncitizen as a dependent on his or her federal income tax return.

The Noncitizen Household if the child is under 21 and unmarried includes (i) The noncitizen; (ii) The noncitizen’s children physically residing with the noncitizen; (iii) The noncitizen’s other children not physically residing with the noncitizen for whom the noncitizen provides or is required to provide at least 50 percent of the children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the noncitizen; (iv) The noncitizen’s parents, legal guardians, or any other individual providing or required to provide at least 50 percent of the noncitizen’s financial support to the noncitizen as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided to the noncitizen; (v) The parents’ or legal guardians’ other children physically residing with the noncitizen; (vi) The noncitizen’s parents’ or legal guardians’ other children not physically residing with the noncitizen for whom the parent or legal guardian provides or is required to provide at least 50 percent of the other children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the parents or legal guardians; and (vii) Any other individual(s) to whom the noncitizen’s parents or legal guardians provide, or are required to provide at least 50 percent of such individual’s financial support or who is listed as a dependent on the parent’s or legal guardian’s federal income tax return.