On October 10, 2018, the Department of Homeland Security (“DHS”) posted a Notice of Proposed Rulemaking (“NPRM”) in the Federal Register related to the public charge grounds of inadmissibility under the Immigration and Nationality Act, as amended (“INA or the Act”) section 212(a)(4). DHS announced a proposed rule and not a final rule and indicated that it will carefully consider public comments (permitted until December 10, 2018) received on the proposed rule and subsequently issue a final public charge rule that will include an effective date. In the interim, and until a final rule is in effect, USCIS will continue to apply the current public charge policy (i.e., the 1999 INS Interim Field Guidance).

Overview of proposed change

DHS’s stated rationale for the NPRM is that the new rule would be more consistent with Congress’ intent related to the public charge grounds of inadmissibility, and that the new rule would be in line with U.S. law, which favors “self-reliance.” If finalized, the proposed rule would significantly expand the types of public benefits that if taken by a foreign national, would increase the grounds under which the U.S. could deny visas than under existing public charge grounds of inadmissibility. Individuals applying for either immigrant or nonimmigrant visas abroad, individuals seeking admission to the U.S. on immigrant or nonimmigrant visas, and individuals seeking to adjust their status from within the U.S. would now be subject to the public charge rule.  The proposed rule would also apply to individuals who received certain public benefits within the U.S. in a nonimmigrant (i.e., temporary) status who are seeking to either extend their stay or change their status.

Exempt Foreign Nationals

The proposed rule would not impact certain groups of foreign nationals that Congress specifically exempted from the public charge ground of inadmissibility. For instance, refugees, asylees, and Afghans and Iraqis with special immigrant visas are exempt from the public charge ground.  In addition, DHS is proposing not to consider in the context of a public charge determination, the receipt of public benefits by foreign national members of the U.S. armed forces, serving in active duty or in any of the Ready Reserve components, or received by the foreign national spouse or children of such service members. Similarly, DHS would not consider Medicaid benefits received by foreign-born children, as defined in section 101(c) of the INA, who either have U.S. citizen parents, have been adopted by U.S. citizen parents, or who are coming to the U.S. to be adopted by U.S. citizens, and where such children will automatically acquire citizenship pursuant to section 320 or 322 of the INA upon or soon after their admission to the U.S.

Lawful Permanent Residents Exempt

While some lawful permanent residents can be subject to the public charge ground of inadmissibility because specific circumstances dictate that they be considered applicants for admission, most lawful permanent residents are not subject to inadmissibility determinations, including public charge inadmissibility. Therefore, lawful permanent residents who subsequently apply for naturalization would not be subject to inadmissibility determinations, including a public charge inadmissibility determination.

Included Public Benefits

Public charge adjudications would only account for receipt of designated public benefits, including cash assistance for income maintenance, Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), any benefit provided for institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and Public Housing.

According to the DHS, the covered benefits generally represent the largest Federal programs for low-income people by total expenditure that address basic living needs such as income, housing, food, and medical care.  Under the proposed rule, receipt of public benefits that are not covered by the 1999 Interim Field Guidance (i.e., Medicaid, the Medicare Part D Low Income Subsidy, SNAP, and the designated housing benefits) would not be considered for public charge purposes unless the receipt occurred after a final rule becomes effective.

Receipt of Public Benefit Threshold

The proposed rule contains three different types of thresholds:

  • Benefits that can be monetized easily such as cash benefits, SNAP or food stamps, and Section 8 vouchers and rental assistance is 15 percent of the Federal Poverty Guidelines (“FPG”) for a household of one within any period of 12 consecutive months, based on the per-month FPG for the months during which the benefits are received. For 2018, the equivalent 15 percent of the FPG dollar value is $1,821. As a result, under the proposed rule, if the DHS determines that within any period of 12 consecutive months, an individual is likely to receive these “monetizable” benefits in a cumulative amount above the threshold, DHS would consider the foreign national inadmissible and ineligible for adjustment of status on public charge grounds.
  • The proposed threshold for those benefits that cannot be monetized easily such as Medicaid, the Medicare Part D Low Income Subsidy, and Public Housing is receipt of such benefits for more than 12 months in the aggregate within a 36-month period (such that, for instance, receipt of two non-monetizable benefits in one month counts as two months).  As a result, under the proposed rule, if DHS determines that in any 36-month period in the future, an individual is likely to receive these “non-monetizable” benefits for a cumulative duration above the threshold, DHS would consider the foreign national inadmissible and ineligible for adjustment of status on public charge grounds.
  • The proposed rule also contains a third standard, under which a person would be considered likely to become a public charge if he or she is likely to receive a monetizable benefit below the threshold, plus one or more non-monetizable benefits for longer than 9 months.  Under the proposed rule, DHS would only consider the direct receipt of benefits by the individual foreign national applicant. Receipt of benefits by dependents and other household members would not be considered in determining whether the foreign national applicant is likely to become a public charge. Similarly, any income derived from such benefits received by other household members could not be considered as part of the foreign national’s applicant’s household income.

According to the DHS, inadmissibility based on the public charge ground is determined by looking at the mandatory factors set forth in INA section 212(a)(4) and making a determination of the applicant’s likelihood of becoming a public charge at any time in the future is based on the totality of the circumstances. According to the DHS, this means that the adjudicating officer must weigh both the positive and negative factors when determining whether someone is likely at any time in the future to become a public charge. According to the DHS, at a minimum, a U.S. Citizenship and Immigration Services (“USCIS”) officer must consider the following factors when making a public charge inadmissibility determination:

According to the DHS, by law, the public charge inadmissibility determination is a prospective determination based on the totality of the circumstances.  In making this determination, DHS would consider any current and past receipt of included public benefits above the designated thresholds as a factor in the totality of the circumstances to the extent probative in the determination; e.g., receipt of a small amount of public benefits for a short period of time many years ago would be less probative then more recent receipt of a greater amount and longer duration according to the DHS. The proposed rule also contains a “heavily weighted negative factor” for current receipt of public benefits or past receipt above the designated threshold within the past 36 months, i.e., within the past 36 months preceding the time of submission of an application or petition.

  • Age;
  • Health;
  • Family status;
  • Assets, Resources, and Financial status; and
  • Education and skills.

DHS is also proposing to consider the foreign national’s prospective immigration status, expected period of admission, and affidavit of support, when an affidavit of support is required under section 212(a)(4)(C) or (D) of the Act.

Factors in favor of a finding of “likely to become a public charge”

The following factors would generally weigh heavily in favor of a finding that a foreign national is likely to become a public charge:

  • The foreign national is not a full-time student and is authorized to work, but is unable to demonstrate current employment, and has no employment history or no reasonable prospect of future employment;
  • The foreign national is currently receiving or is currently certified or approved to receive one or more of the designated public benefits above the threshold;
  • The foreign national has received one or more of the designated public benefits above the threshold within the 36 months immediately preceding the foreign national’s application for a visa, admission, or adjustment of status;
  • The foreign national has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the foreign national’s ability to provide for him or herself, attend school, or work, and the foreign national is uninsured and has no prospect of obtaining private health insurance; or
  • The foreign national had previously been found inadmissible or deportable based on public charge. According to the DHS, the following factors would weigh heavily against a finding that a foreign national is likely to become a public charge:

Factors weighing against a finding of “likely to become a public charge”

  • The foreign national has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines for a household of the foreign national’s household size; or
  • The foreign national is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the foreign national’s household size.

About the Author: Elise S. Levasseur is a Member in Dickinson Wright’s Troy office where she practices in the area of immigration. She can be reached at 248-433-7520 or elevasseur@dickinsonwright.com and you can visit her bio here.