Under the US immigration law, an individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a lawful permanent resident. On February 24, 2020, the U.S. Citizenship and Immigration Services (USCIS) will implement a new Inadmissibility on Public Charge Grounds rule, which significantly broadens the immigration agency’s authority to determine whether individuals will become a public charge and expands the inquiry to nonimmigrants seeking an extension or change of status. The USCIS will implement the rule in all US states, except in Illinois, where the rule remains enjoined by a federal court as of Jan. 30, 2020. The final rule will apply only to applications and petitions postmarked (or submitted electronically) on or after Feb.24, 2020.

Individuals seeking permanent residence through the adjustment of status process will be subject to increased financial information and documentation requirements, and more scrutiny of their personal circumstances. Under the rule, adjustment of status applicants will be reviewed under a “totality of circumstances” test that will take into account each applicant’s age, household size, income, financial liabilities, receipt of certain public benefits, health, and education and skills. Also, after February 24, 2020, adjustment applicants will be required to submit a report of their credit history and credit score, as well as detailed information about health insurance coverage. The USCIS will also require applicants to complete new Form I-944, Declaration of Self-Sufficiency. Importantly, refugees, asylees and other humanitarian or special immigrant categories of applicants are exempt from the new rule.

One of the biggest changes is that as of February 24, 2020, nonimmigrants seeking an extension or change of status, must satisfy a new public charge condition to be deemed eligible for their requested immigration benefit. Specifically, nonimmigrant applicants will be required to disclose whether they have received or are certified to receive certain public benefits on or after February 24, 2020. In order to negatively affect the application, the individual must have received the benefits for more than 12 months within a 36-month period since obtaining their nonimmigrant status. Certain nonimmigrant categories, related to humanitarian and victim classifications, are exempt from the public benefits condition requirement.

Not all public benefits would lead to a public charge determination and USCIS guidance specifies that receipt of cash assistance for income maintenance (such as Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance) could make a noncitizen inadmissible as a public charge if all other criteria are met. However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds. Each determination is made on a case-by-case basis in the context of the totality of the circumstances. In addition, public assistance, including Medicaid, used to support individuals who reside in an institution for long-term care (such as a nursing home or mental health institution) may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.