US Public Charge Update
Effective February 24 2020, USCIS is implementing the Inadmissibility on Public Charge Grounds final rule nationwide.
On August 14, 2019, the Trump Administration published a Final Rule that changed the definition of “public charge” and added specific details about how immigration officials will take into account the applicant’s income, health, age, education and family status.
In response to the rule, multiple organizations and immigrant advocates, including states, counties and non-profit organizations, were successful in seeking temporary injunctions to block the Trump Administration from using the new, tougher rules on US immigration applications from low-income immigrants.
The preliminary injunctions that had temporarily blocked implementation of the rule, including nationwide injunctions from federal judges in New York, Washington and Maryland, have now been stayed.
Following a judicial victory on February 21 to lift the injunction in the state of Illinois, USCIS will now apply the Final Rule to all applications and petitions postmarked (or submitted electronically) on or after February 24 2020.
Expanding the remit for public charge grounds
The original policy guidance relating to immigrants, which had been effective since 1999, defines a public charge as an individual who is “likely to become primarily dependent on the government for subsistence”.
The public charge test has been used for more than a century by US authorities to determine whether an individual applying for admission to the US or for lawful permanent resident (LPR) status has or will become financially dependent on the Government.
Since 2018, US consular officers have considered an increasingly broad range of benefits when assessing applications against the public charge requirement, and whether an applicant has been or might in the future become dependent on government benefits.
Under the new rule, the Government can lawfully deny an immigration application if the applicant is deemed likely at any time to become a public charge.
At this stage, the long-term implications of the changes remain unclear. However, the rule has already resulted in greater scrutiny of income and assets for marriage-based immigrant visa applicants, and the number of applications refused on the public charge grounds has risen during Trump’s presidency, in line with an overall increase in visa denials and measures to restrict family-based immigration to the US.
Application processing
The process for determining public charge grounds depends on whether the immigrant’s application is being processed inside or outside the US.
Decisions about applications for admission or LPR status handled outside the US at embassies or consular offices abroad are guided by the Department of State (DOS) and are different from decisions on applications for LPR status processed inside the US, which are guided by regulations and policy from the US Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS).
In-country applications
While the courts have blocked the Department of Homeland Security’s (DHS) Final Rule, in October 2019 the DOS issued an interim final rule aligning DOS’s public charge standards with those of DHS.
The DOS confirmed it will not implement the interim final rule until the use of a new form for information collection and the Foreign Affairs Manual (FAM) revisions are approved by OMB following a public questionnaire.
As the legal challenge continues, the current policy remains effective, with the only benefits considered in determining whether a person is likely to become a “public charge” are:
- Cash assistance for income maintenance, which includes state and local cash assistance programs as well as federal programs such as Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF).
- Government funded long-term care (nursing home or other institutionalized care).
Applications processed outside the US
This affects non–US nationals applying through consular processing before entering the US, such as tourist or employment-based visas, lawful permanent resident applicants and those required to leave the US to apply for status.
On October 11, 2019, the Department of State (DOS) issued an interim final rule that aligns its definition of public charge to that of the DHS final rule. In doing so, it defined a public charge as an immigrant “who receives one or more public benefits 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’ worth of benefits)”.
Under the updated rules, receipt of benefits by a family member will not be considered. Additionally, benefits used in another country will not be considered. Benefits (other than cash assistance or long-term care) used before October 15, 2019, will not be considered. Receipt of named benefits will continue to be just one factor in the broader totality of circumstances test which considers an applicant’s age, health, family status, income and resources, education and skills.
The State Department is seeking approval of a new form before changing the process. Once effective, the interim rule will supersede the Foreign Affairs Manual (FAM) manual changes from January 2018.
Need assistance?
USCIS will apply the Final Rule to all applications and petitions postmarked or submitted electronically on or after February 24 2020.
If you have any queries about the changes and the potential impact on any US immigration applications, speak to our US immigration specialists.
Last updated: February 24, 2020
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
