Here's How You Can Protect Your Business

The Immigration Corner: The Rules Regarding Public Charge Have Changed

The change has finally come to the rules defining what a public charge is for lawful permanent residence seekers and other temporary immigrants that are seeking to stay in or enter the U.S. In a nutshell, a public charge is a term used in immigration law to describe someone that relies, or will likely rely, on certain government resources to sustain his or herself; this determination is used to screen out immigrants from entering or staying in the U.S. The new rule has expanded the definition to include more individuals, which could have far-reaching consequences for immigrants and ultimately curtail the use of government benefits by immigrants or increase denied applications and petitions filed with USCIS.

The Old Rule
It has long been the law in the U.S. that an individual who is likely to become a public charge is inadmissible for purposes of obtaining a non-immigrant status or visa and for purposes of obtaining lawful permanent residence (commonly referred to as a “green card”). The law does not explicitly define what a public charge is and only provides a minimum list of factors to be considered by the adjudicating officer as to whether the individual before him or her is likely to become a public charge or has already become a public charge. These factors are: 1) age, 2) health, 3) family status, 4) assets, resources, and financial status, and 5) education and skills.

The law does not specify which public benefits could be included in the public charge analysis. To compensate for the incompleteness of the definition, the former Immigration and Naturalization Service (INS), the predecessor to USCIS, developed interim guidance. That guidance defined a public charge as an individual that has become or is likely to become primarily dependent on the government for subsistence. There were two kinds of benefits that an individual could receive from the government that qualify as government subsistence: 1) receipt of public cash assistance for income assistance and 2) long-term care paid for by the government. All other government programs that provided benefits to individuals were excluded from the analysis of whether the individual receiving such benefits would be inadmissible as a public charge.

Under this guidance, USCIS would review the factors set forth in the law as well as the receipt, or potential receipt, of one of the two forms government subsistence stated above. In addition to the other factors, receipt of public cash assistance or long-term care paid by the government would be considered when determining whether that individual was likely a public charge but other non-cash benefits, such as Medicaid and SNAP, would not be considered. This guidance has remained in effect since 1999.

The New Rule
On August 12, 2019, USCIS announced a new rule that greatly expanded the definition of a public charge and the resulting new rule will have wide-ranging consequences after its effective date, October 15, 2019. Under the new rule, a public charge is an individual that receives or is likely to receive any number of public benefits for more than an aggregate of 12 months over any 36-month period. Further, each benefit used by the individual is counted separately in the 12-month calculation. For example, if the individual used three benefits in one month, it would equal three months of use of benefits instead of one month. Under this new standard, individuals that use many benefits would reach the 12-month threshold very quickly. The new rule changes the analysis from whether the individual is, or would likely become, primarily dependent on the government for subsistence to a more pointed analysis of whether the individual has or is likely to use public benefits within a specific time period.

The new rule also expands the list of government benefits that can be part of the public charge analysis. Where the previous rule focused on cash-based benefits, the new rule expands into non cash-based benefits, as well as previously excluded cash-based benefits, including:

  • Any federal, state, local, or tribal cash assistance for income maintenance
  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Federal, state or local cash benefit programs for income maintenance
  • Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
  • Section 8 Housing Assistance under the Housing Choice Voucher Program
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
  • Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.
  • Federally funded Medicaid

There are some exceptions where the receipt of certain benefits from the list above will not be included in the public charge analysis. They are the following:

  • Medicaid
    • for the treatment of an emergency medical condition
    • benefits received while the individual was under 21 years of age
    • benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy
  • Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;
  • School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education

Additionally, if the individual is serving in the military, either in active duty or in the Ready Reserve, any use of government benefits will not be counted in the public charge analysis.

The new rule still uses the factors test to determine whether someone is likely to be a public charge, but the list of factors has expanded. These factors now include the following:

  • Age
  • Health
  • Family status
  • Assets, resources, and financial status
  • Education and skills
  • Prospective immigration status*
  • Expected period of admission*
  • Sufficient Form I-864, when required*

*New factors

Additionally, DHS has put forth a list of specific factors that will be heavily weighted towards a determination that an individual is a public charge. They include:

  • The individual is not a full-time student and is authorized to work but cannot show current employment, recent employment history, or a reasonable prospect of future employment.
  • The individual has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period.
  • The individual has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition.
  • The individual has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.

Similarly, DHS has put forth a list of specific factors that will be heavily weighted towards a determination that an individual is not a public charge. They include:

  • The individual has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for his or her household size.
  • The individual is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of his or her household size.
  • The individual has private health insurance appropriate for the expected period of admission, so long as the individual does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.

So, what does this mean for the individual seeking to stay in the U.S., either temporarily or permanently?
The new rule expands the definition of what constitutes a public charge by expanding the factors that USCIS officers can consider and the number of government benefits that can be included in the public charge analysis, while changing the way USCIS reviews the receipt of government benefits. Ultimately, the use of government benefits is no longer as safe as it used to be. Using government benefits or the likelihood of an individual using government benefits can have severe immigration consequences. It could lead to the determination that the individual is likely to become a public charge, leading to denied change of status and/or extension of status applications (for temporary statuses) and adjustment of status applications (green card applications). The good news is that this change does not take effect until October 15, 2019 and will only apply prospectively from that point. Any application or petition already filed with USCIS will not be subject to this new rule.

Before applying for any governmental benefits, it is important that you consult an experienced immigration attorney to make sure the benefits will not have any lasting impact on your current and future immigration plans.

Attorney Paul Messina focuses his practice on all aspects of employment-based, investor-based and family-based immigration law. He has extensive experience in proceedings before United States Citizenship and Immigration Services (USCIS) and the Consular Section of the United States Department of State. He has handled a variety of immigration cases, including employment-based green cards, EB-5 investment-based green cards (direct and through regional centers), and many of the non-immigrant visa/status categories as well as family-based green cards.

Author’s note: The Immigration Corner presents current and relevant topics in immigration law. The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.