Clarity and Strength in Immigration Law

New Public Charge Rule: September 2019 Update

The public charge rule was announced a little less than a month ago, and will take effect October 15th, 2019. We wrote about the rule when it the final rule was announced, and we now have some additional information, which we’re sharing below.

What is “public charge”?

A public charge refers generally to a person who relies primarily on the government for their source of income or subsistence, either through cash assistance from the government, or through being institutionalized. There are several grounds of inadmissibility as an immigrant to the US, and the idea of limiting public charges has been a long-standing principle of US immigration law. The public charge ground of inadmissibility does not apply to all green card categories, but it does apply to almost all family-based green card categories, and to some employment-based categories.

How do you prove you will not be a public charge?

Until this rule change takes effect, a green card applicant generally submits the I-864 affidavit of support with their green card application filing. The I-864 is a contract with the federal government, signed by the petitioner/sponsor (for example, US citizen spouse). By executing the affidavit of support form, the sponsor understands and agrees to support the intending immigrant and to reimburse any government agency or private entity that provides the intending immigrant with certain federal, state, or local means-tested public benefits. The sponsor further understands that the sponsored immigrant may have a private cause of action on the affidavit of support.

Until the rule change takes effect, if you submit a sufficient affidavit of support, you typically have met the requirements to show that you will not be a public charge.

What is changing with this rule?

Once the new rule is in effect, the following changes will be in place:

First, USCIS will redefine public charge as a noncitizen who receives a specified public benefit 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).

The final rule at 8 CFR 212.21(b) defines a public benefit as:
1. Any federal, state, local, or tribal cash assistance for income maintenance, including:
a. Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
b. Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.;
c. Federal, state, or local cash benefits 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), 7 U.S.C. 2011 to 2036c;
3. Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f;
4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
5. Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
6. Public housing under section 9 of the U.S. Housing Act of 1937

Second, a properly completed affidavit of support will no longer be the sole determining factor that USCIS considers in determining whether an individual is likely at any time in the future to become a public charge. Under the new rule, USCIS adjudicators will apply a complex totality of circumstances test that weighs the foreign national’s age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors. USCIS notes in the final rule that it interprets “likely at any time” to mean that it is “more likely than not” that the individual at any time in the future will receive one or more public benefits as defined by the rule.

When will the rule take effect and what types of cases does this affect?

  • Right now, the rule will take effect on October 15, 2019. Please note that the rule is not retroactive. That means that it does not apply to cases that were filed before October 15, 2019. In addition, USCIS will not consider specific benefits that a foreign national may have received before the rule becomes effective (with certain exceptions, pursuant to existing policy).
  • The rule will affect most family-based adjustment of status cases, and certain employment-based permanent residence cases.
  • The Department of State has their own public charge guidelines, which affect consular processing cases.
  • The new regulation says that USCIS will also conduct a more limited public charge determination of nonimmigrants, in cases where the foreign national received the specified benefits during certain timeframes.

How will this rule affect the processing of cases when it is effective?

If this rule becomes effective (it is possible it would be delayed or stopped entirely by federal litigation challenging it), we anticipate the following changes:

  • The new policy is significantly more restrictive and will allow USCIS officers to use wide discretion based on a variety of factors in making public charge determinations.
    • This could result in a significant increase in the number of denials for adjustment of status cases, and it will likely result in inconsistent and unpredictable decision-making on adjustment cases.
  • If an I-485 applicant is found to be likely to be a public charge, they will have to submit an additional form, the I-944. This is a 15 page form that resembles a mortgage application, as it asks for detailed information about assets, household income, debt, and credit reports, among other things. This of course will be a tremendous burden for affected applicants.

What should you do now?

If you are considering filing for the adjustment of status in the US through a family member, and if you are eligible to do that now, we highly recommend that you do that before the new rule becomes effective. If you file an adjustment of status after the new rule becomes effective, we recommend consulting with a qualified immigration lawyer before filing, and to seriously consider hiring a qualified immigration lawyer to handle your filing. This new rule as we all as other related policy changes can be confusing even for immigration lawyers, and this change and others have created numerous pitfalls and roadblocks that can cause a case to be delayed or denied, especially if the case is not presented well. We know there is a lot at stake in filing for a green card for a family member, and we want you to be as well-prepared as possible for this important step in your life.

We are immigration lawyers located in Richmond, VA but we serve clients throughout the US and around the world.  You can call us at 804-396-3412 or send us an email to info@sumnerimmigration.com. We look forward to assisting you!

Sumner Immigration Law is LGBTQ-friendly.