The information below may significantly impact many types of U.S. immigration filings, including green card applications (both ones filed from within the US, and ones filed through consular processing), as well as nonimmigrants (H-1B, L, E, etc) in certain circumstances.

On Monday, August 12, 2019, the U.S. Department of Homeland Security (DHS) announced a final rule amending “public charge” regulations. This rule will likely affect many people applying for admission into the United States and adjustment of status.

The final rule:
(1) Defines “public charge” and “public benefit”;
(2) Explains what factors DHS will consider when making public charge determinations; and
(3) Gives USCIS officers the discretion to determine what constitutes as a public charge.

What is a public charge?
The new rule defines public charge as “an alien who receives one or more public benefits […] for more than 12 months in the aggregate within any 36-month period.” This definition means that if any foreign national receives public benefits, as listed below, for more than 12 months over a 36-month period, then they are subject to denial of admission into the United States or of adjustment of status. Additionally, if you receive two benefits in one month, then that will be counted as two months of benefits.

What qualifies as a public benefit?
For a copmlete list you should consult an attorney, but examples of public benefits that will be counted against admissibility and adjustment of status are:
(1) Cash Programs (Supplemental Security Income, Temporary Assistance for Needy Families, General Assistance);
(2) Healthcare Benefits (Medicaid, Medicare, Affordable Care Act subsidies);
(3) Nutrition and School Programs (Supplemental Nutritional Assistance Program, Woman Infant & Children, Free and Reduced School Lunch, Head Start Program); and
(4) Housing Benefits.

What factors will DHS consider in making public charge determinations?
DHS has stated that when determining a public charge ground, they will consider a “totality of the circumstances.” The department will weigh positive and negative factors of consideration, weighing some factors more heavily than others. A list of the factors that DHS will consider are as follows:
(1) Age;
(2) Health;
(3) Family Status;
(4) Assets, resources, financial status;
(5) Education and Skills;
(6) Prospective immigration status and expected period of admission; and
(7) Affidavit of sponsorship.

This means that USCIS will now have wide discretion to deny a case on public charge grounds. Until now, if a person signing the I-864 met the income requirements, the public charge concern was met, and no additional inquiry would be required. The new rule allows for much more discretion on the part of the agency reviewing the affidavit of support, and gives them much more leeway to ask for potentially invasive financial information.

Who is exempt from these new regulations?
Asylees, refugees, country-specific humanitarian category immigrants, and victims of violence are all exempt from the above changes in regulations and may receive public benefits unaffected. Additionally, active-duty military personnel and their families and pregnant women (up to 60 days post-partum) may be exempt in certain cases.

When do the new rules go into affect?
Pursuant to U.S. law, the new regulations will go into affect 60 days after the final rule is published in the Federal Register. The final rule is set to be published on August 14, 2019 so the rule will go into affect Sunday, October 13, 2019.

It is important to note, however, that the regulations are not retroactive. Petitions filed before October 13, 2019 will not be affected. If you are considering filing for permanent residence and you are able to file now, we highly recommend that you consider filing now, rather than waiting until the rule becomes effective, so you will not have to deal with these additional changes. Further, if you file for permanent residence going forward, we highly recommend at least meeting with an immigration attorney, and hiring one to handle your case, if possible, in light of these and other complex and potentially harmful changes.

Our office will continue to post more information about this new rule as it becomes available, and as we see it play out in real time.
For more information, the final rule is published on the link below: https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-17142.pdf.

We are immigration lawyers located in Richmond, VA but we serve clients throughout the U.S. 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!