Public Charge Update:
After a ruling by the U.S. Supreme Court on January 27, 2020, the Department of Homeland Security (DHS) can now implement their new rule relating to the “public charge” ground of inadmissibility. DHS announced that the rule will go into effect on February 24, 2020.
**Adjustment of Status applications postmarked before February 24, 2020 will be adjudicated under policies in place before the new DHS rule**
On February 20, 2020, the Department of State (DOS) announced that they are also ready to start implementing their new rule relating to public charge inadmissibility starting February 24, 2020, now that a new public charge questionnaire form has been approved. The DOS rule generally follows the same new provisions announced in the DHS rule.
**Consular Processing applications with interviews on or after February 24, 2020, may be asked to complete the new public charge questionnaire form, DS-5540, and will be evaluated under the new DOS rule. Consular officials are instructed to not deny a case based on public charge without first giving applicants an opportunity to fill out the DS-5540 and provide supporting documentation, if they have not already done so**
On August 14, 2019, the Department of Homeland Security (DHS) published a final rule in the Federal Register relating to the public charge ground of inadmissibility, which would apply to cases decided by U.S. Citizenship and Immigration Services (USCIS). The new rule was scheduled to take effect on October 15, 2019; however, multiple federal courts issued injunctions that temporarily stopped the rule from taking effect as scheduled. As the legal challenges against the new rule have continued, some of these injunctions were lifted. On January 27, 2020, the U.S. Supreme Court lifted the last remaining nationwide injunction which was preventing the rule from going into effect—and on February 21, 2020 the Supreme Court lifted the last remaining, Illinois-only injunction—allowing DHS to implement the new public charge rule nationwide on February 24, 2020.
Other people must go through a process outside the United States, at a consulate or embassy, to get their green cards. Those who are immigrating from outside the United States, and even some people who live here, but entered without a visa or into the United States other than through an immigration checkpoint, must immigrate through an interview at a consulate or embassy outside the United States. On October 11, 2019 the Department of State (DOS), the agency that controls visa decisions at the consulates, also published a new rule related to public charge inadmissibility. The DOS rule was set to take effect at the consulates on October 15, 2019, but implementation was also delayed. On February 20, 2020, DOS announced that their new public charge questionnaire form, DS-5540, was approved, and they will start implementing their new rule starting February 24, 2020, at the same time as DHS. On February 21, 2020, the DOS Foreign Affairs Manual guidance on public charge was updated to reflect the new rule.
What is public charge?
“Public charge” is a ground of inadmissibility. Grounds of inadmissibility are reasons that a person could be denied a green card, visa, or admission into the United States. It is not a test that applies to everyone. In deciding whether to grant an applicant a green card or a visa, an immigration officer must decide whether that person is likely to become dependent on certain government benefits in the future, which would make them a “public charge.”
Here are a few important points regarding public charge:
- Public charge does not apply to all immigrants. This law mainly impacts those seeking permanent resident status through family member petitions.
- In immigration law, public charge is a ground of “inadmissibility.” This law says that those who are viewed as likely to become dependent on the government in the future as a “public charge” are inadmissible. Grounds of inadmissibility only apply to those seeking entry at our borders or those applying for a green card (lawful permanent residence).
- Many immigrant categories are exempt from the public charge ground of inadmissibility, even if they might be applying for status or a green card. U visa holders, T visa holders, asylees, refugees, and many more categories are exempt.
- Public charge laws do not apply in the naturalization process, through which lawful permanent residents apply to become U.S. citizens.
When do the new public charge rules take effect?
USCIS will implement the Inadmissibility on Public Charge Grounds final rule on February 24, 2020. The final rule will apply only to applications postmarked on or after Feb. 24, 2020. For applications sent by UPS, FedEx, etc., the postmark date is the date reflected on the courier receipt. DHS will not consider an applicant’s use or application for the newly added non-cash public benefits received before February 24, 2020. (An adjudicator can already consider receipt of cash-aid in the public charge, certification or approval to receive, or receipt of certain non-cash public benefits before Feb. 24, 2020.)
Applications for adjustment of status that are already pending with USCIS and those postmarked on or before February 23, 2020 will be adjudicated under criteria in effect before the new rule.
At U.S. consulates and embassies abroad, consular officers will also start implementing the new public charge inadmissibility rule on February 24, 2020. Consulates and embassies are instructed to do their best to notify individuals of new required documentation, including a new public charge form (Form DS-5540), in advance of the interview but for those with consular interviews on or soon after February 24, 2020, at the very least they must be given an opportunity to fill out the DS-5540 form, if they have not already, before an officer makes a negative public charge determination.
Which immigrants are subject to the new public charge rules?
As mentioned above, not all immigrants are subject to the public charge ground of inadmissibility—only those seeking admission to the United States or applying for a green card based on a petition filed by a U.S. citizen or permanent resident family member are subject to public charge. Remember, many immigration statuses are exempt from public charge or do not have a public charge test, like asylum, U visas, and other forms of relief granted in court.
How do the new rules change the public charge test?
Until now, the use of most public benefits was not a barrier to legal status in the United States, which has been the policy for at least two decades. The new rules punish receipt of vital health, housing, and nutrition programs, including federally-funded Medicaid, SNAP benefits (formerly known as food stamps), and Section 8 housing benefits. Adding consideration of these benefits to the public charge analysis, however, has limited legal impact—most immigrants who are on the path to a green card don’t have access to these benefits, or if they do, then they are in an immigrant category that is exempt from public charge.
In addition, the new rules direct immigration officers to consider several factors related to an immigrant’s economic situation, education, and health. In so doing, the new rules encourage officers to use their own discretion in making important decisions about whether a person can immigrate to the United States. The discretionary consideration of these factors under the new rules will impact green card applicants from low-income families.
What specific provisions are in the new public charge rules?
- While the test for whether someone is likely at any time to become a public charge will still be prospective (future-looking) as required by the statute, the new rules redefine what it means to be a “public charge.” Now, instead of assessing whether an applicant is likely to become primarily dependent on the government for income support, the new rules define a public charge as a person who is likely to receive any number of public benefits for more than an aggregate of 12 months over any 36-month period of time. Each benefit used counts toward the 12-month calculation. For instance, if an applicant is likely to receive two different benefits in one month, that counts as two months’ use of benefits.
- The rules expand the list of publicly-funded programs that immigration officers may consider when deciding whether someone is likely to become a public charge. Under the new rules, federally-funded Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.
- As before, all use of cash aid, including not just TANF and SSI but also any state or local cash assistance program, could make an individual inadmissible under the public charge ground.
- As before, benefits received by an immigrant’s family members will not be considered in the public charge determination. Additionally, Medicaid received by applicants while under age 21, while pregnant (and up to 60 days after a pregnancy), or during an emergency are not considered.
- It is important to remember that prior receipt of benefits is only one factor in the public charge test. The new rules set out criteria for considering several factors in assessing the likelihood that a person will need more than 12 months of public benefits in the aggregate over a 36-month period in the future. The rules elaborate on criteria for other factors such as the applicant’s age, health, household size, education, employment, and financial resources.
- The rules allow immigration officers to consider English proficiency (positive) or lack of English proficiency (negative), a person’s credit score, medical conditions and whether the person has access to private health insurance. The rules will require immigrants to attach a new form, I-944, Declaration of Self-Sufficiency when applying for a green card through adjustment of status and DS-5540, Public Charge Questionnaire when applying for a green card through consular processing, in addition to the many other forms already required as part of an application for permanent residency.
- The rules create “heavily weighted” factors, both negative and positive. It is a heavily weighted negative factor to receive more than 12 months of public benefits in the aggregate over the 36-month period of time before submitting the application for adjustment or admission. Heavily weighted positive factors include having a household income of at least 250% of the federal poverty level. It is not clear how an immigration officer should decide a case that has a heavily weighted factor or, for instance, has both heavily weighted negative and positive factors, as no one factor should be dispositive.
- Payment of a bond may be possible to overcome a finding of public charge inadmissibility. With USCIS, the bond process is highly discretionary, with the minimum bond amount set at $8,100. At the consulates, there may also be an opportunity to submit a bond as a way to overcome a public charge inadmissibility finding in rare circumstances.