On August 12, 2019, US Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS), published an advance copy of the final rule on inadmissibility on public charge grounds. The final rule will be effective 60 days after the date of publication in the Federal Register. According to the notice, applications and petitions already pending with USCIS on the effective date of the rule will not be subject to the new rule. The final rule will be published in the Federal Register on August 14, 2019. This Legal Update provides background on and details of the rule and notes its potential impact and likely response to the rule.

A. Statutory Authority

  • The Immigration and Nationality Act of 1952 (INA) and implementing regulations have long included grounds of inadmissibility and removal designed to limit access to public benefits by immigrants and nonimmigrants.
  • Under INA Section 212(a)(4), an alien may be denied admission into the United States or adjustment to lawful permanent resident (LPR) status if he or she is "likely at any time to become a public charge."
  • Under INA Section 237(a)(5), an individual admitted to the United States may be subject to removal if he or she has become a public charge for reasons not affirmatively shown to have arisen since entry. This ground of removal has been rarely applied and is not affected by the new rule.

B. Legacy Implementation

  • In September 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which mandated consideration of the following factors in making a public charge assessment: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. IIRIRA also included new provisions requiring most family-based immigrants and some employment-based applicants to submit a Form I-864, Affidavit of Support, from a qualifying US citizen or lawful permanent resident sponsor. By signing Form I-864, the sponsor agrees to use his or her financial assets to support the sponsored immigrant. The sponsor’s assets are deemed to be available to the immigrant when the immigrant applies for means-tested public benefits. Form I-864 is a contract that may be enforced by the sponsored immigrant and the benefit agency if the agency pursues repayment of the benefits provided.
  • DHS and the Department of State (DOS) have primary responsibility for implementing the public charge provisions. USCIS may make a public charge determination when an individual applies to adjust to LPR status. Abroad, DOS consular officers may make a public charge determination when an individual applies for a visa.
  • Although the INA does not explicitly define the term "public charge," since 1999, interim guidance has defined it to mean a person who is or is likely to become "primarily dependent" on "public cash assistance for income maintenance" or "institutionaliz[ed] for long-term care at government expense" (INS No. 1989-99 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28675-88 (May 26, 1999)). The new rule explicitly supersedes the 1999 interim guidance.

C. Change in Policy and Reported Impact

  • In January 2018, DOS revised the Foreign Affairs Manual (FAM) to instruct consular officers to consider a wider range of public benefits when determining whether visa applicants who have received or are currently receiving benefits are inadmissible on public charge grounds.
  • Recent press reports have indicated that the number of visas denied based on the likelihood that the applicant will become a public charge has increased dramatically. For example, POLITICO recently reported that DOS had denied 5,343 immigrant visa applications for Mexican nationals on public charge grounds so far this fiscal year, compared to just seven denials for Mexican applicants in fiscal year (FY) 2016.
  • The number of visa denials for applicants from all nations based on public charge has risen, as well. DOS data shows 12,179 visa rejections on public charge grounds from October 1, 2018, through July 29, 2019. DOS disqualified only 1,033 people worldwide on public charge grounds in FY2016.

D. The Final Rule

  • On October 10, 2018, DHS published a notice of proposed rulemaking, “Inadmissibility on Public Charge Grounds,” with request for public comments. The agency reports that it received and considered 266,077 mostly negative comments in response to the proposed rule.
  • The current list of specified public benefits includes only federal, state, local, or tribal cash assistance for income maintenance or institutionalization for long-term care at government expense, Temporary Assistance for Needy Families (TANF), and Supplemental Security Income (SSI). The new rule adds non-cash benefits such as Medicaid (with limited exceptions for Medicaid benefits paid for an "emergency medical condition" and for certain disability services related to education), the Medicare Part D Low-Income Subsidy, the Supplemental Nutrition Assistance Program (“SNAP” or “food stamps”), the Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and public housing.
  • The rule defines a “public charge” to mean “an alien who receives one or more designated 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).”
  • The new rule also specifies a list of factors, such as age, English language proficiency, family size, and health, that would be considered in determining whether, “in the opinion of the officer,” the applicant is “likely to become a public charge.” Information on the factors will be collected on Form I-944, a new form designed for this purpose.
  • When considering receipt of public benefits in the public charge inadmissibility determination, DHS will not consider any public benefits received by aliens serving in active duty or in the Ready Reserve component of the US Armed Forces or the spouse or child of the service member. Additionally, DHS will not consider disaster relief, emergency medical assistance, benefits received by an alien’s US citizen children, and Medicaid benefits received by children of US citizens and potential adoptive children of US citizens.
  • The rule also enumerates 27 categories of individuals, including refugees and asylees, who are exempt by statute or regulation from the public charge ground of inadmissibility.
  • In addition, for the first time, a nonimmigrant seeking a change of status or extension of stay will be required to state whether he or she has received public benefits.
  • Finally, the rule authorizes officers to allow the posting of a public charge bond in an amount not lower than $8,100 (indexed annually for inflation) to overcome a finding of inadmissibility on public charge grounds.

E. Impact of Final Rule and Likelihood of Litigation

  • The new rule is likely to exacerbate the upward trend in public charge visa denials noted above, with the most significant effects being felt by immigrants from Mexico and Central America. The Migration Policy Institute (MPI), for example, reviewed US Census Bureau data from 2012 to 2016 to evaluate the anticipated impact of the proposed “totality of the circumstances” test under which officers will consider a series of positive and negative factors in assessing the likelihood of becoming a public charge. MPI found that, “if the test were applied to the approximately 940,000 permanent residents admitted in 2017 (excluding refugees, asylees, and other humanitarian admissions), about 650,000 would have been at risk of denial for having at least one negative factor, and, among them, about 400,000 for having at least two.”
  • Immigrant advocacy groups have suggested that, as with the proposed rule, the final rule will have a chilling effect on families, who will chose to forgo essential services for which they are otherwise eligible to avoid putting their immigration status at risk.
  • Press reports from India have raised concerns that the “totality of the circumstances” list of factors, such as English proficiency, income, and family size, could be used to deny the H-1B and F-1 student visa applications of people who have never even used public benefits.
  • While DHS did make some changes based on the numerous public comments it received, the new rule is already being challenged in the courts. The first lawsuit was filed on August 12, 2019, by Santa Clara County and San Francisco, alleging that the rule conflicts with the INA and seeking a temporary injunction in the Northern District of California. In addition, the attorneys general for New York and California have vowed to fight the rule in court.
  • If the new rule is allowed by the courts to take effect, we also anticipate legal challenges brought by or on behalf of persons found to be inadmissible under it, including those seeking to extend or change their status in the United States.