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Inadmissibility Based on Public Charge

Updated: Sep 3, 2019

August 14, 2019 -

Public charge is a term used in immigration law to refer to a person who is primarily dependent on the government to meet their basic needs.

In announcing the Final Rule Enforcing Public Charge Inadmissibility Law USCIS Immigration has tightened the definition of public charge. This rule supersedes the 1999 Interim Field Guidance on Deportability and inadmissibility on Public Charge Grounds and goes into effect at 12:00 am Eastern on October 15, 2019. USCIS will apply the public charge inadmissibility final rule only to applications and petitions postmarked (or, if applicable, submitted electronically ) on or after the effective date. Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on the 1999 Interim Guidance. The issue of public charge has been long standing and is used to ensure that applicants are not likely to become a burden on the state in the future.

This DHS expansion rule will define more services that would be considered to determine whether an alien is inadmissible to the US based on his or her likelihood of becoming a public charge at any time in the future

In August 2019, The National Immigration Law Center posted the following public charge explanation applicants for Legal Permanent Residence:

The rule expands 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 rule, 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.The proposal also considers that 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.

It is important to remember that prior receipt of benefits is only one factor in the public charge test. The new rule sets out criteria for considering several factors in assessing the likelihood that a person will need more than 12 months of public benefits in aggregate over a 36-month period in the future. The rule also elaborates on criteria for considering financial status, size of family, age, education, skills and employment, among others.The rule allows immigration officers to consider English proficiency (positive), or lack of English proficiency (negative); medical conditions and availability of private health insurance; and past use of immigration fee waivers. The rule will require immigrants to attach a Declaration of Self-Sufficiency when applying for a green card in addition to the many forms already required.

"How are public charge decisions made?

When a person applies to become an LPR, immigration officials look at all the person’s circumstances to determine if the person is likely to use one or more of the following benefits in the future:.

Under the final rule, “public charge is defined as individuals who receive one or more of the following government benefit programs for at least a total of 12 months within any 36-month period:

  • Cash Assistance for Income Maintenance

  • Supplemental Security Income (SSI)

  • Temporary Assistance to Needy Families (TANF)

  • Most Forms of Medicaid

  • Supplemental Nutrition Assistance Programs (SNAP)

  • Section 8 Housing Assistance under the Housing Choice Voucher Program

  • Section 8 Project Based Rental Assistance

  • Subsidized Public Housing

(except for emergency services, children under 21, pregnant women, and new mothers (for 60 days)

DHS will determine inadmissibility based on the "totality of circumstances," if at any time in the future, an individual is likely to become a public charge, weighted by the following factores at the time of the application:

  • Age

  • Health

  • Family status

  • Financial resources, including assets

  • Education and skills

  • Prospective immigration status

  • Expected period of admission

  • Sufficient affidavit of support

PLEASE NOTE: Applications that are pending with USCIS or received prior to October 15, 2019 will continue to be adjudicated under the 1999 Interim Field Guidance.

Exceptions to the Final Rule:

The final rule would not impact the following:

Service members that are enlisted or are in active duty with the U.S. Armed Forces, or in any of its Ready Reserve components; spouse and children of such service members

Children, including adopted children, who will acquire U.S. citizenship under INA 320, USC 1431

  1. Refugees

  2. Asylees

  3. T-Visa Applicants

  4. U-Visa Applicants

  5. VAWA Applicants

  6. Special Immigrant Juveniles

For immigrants applying from inside the U.S. On August 14, 2019, the Trump administration published a new rule that changes the definition of “public charge” from a person primarily dependent on the government for support to a person who is likely to use one or more of the government programs listed above. The rule also adds specific details about how immigration officials will take into account the applicant’s income, health, age, education, and family status. Immigration officials may not start applying the new rule until October 15, 2019."

The effect of public charge in Immigration

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