DHS Publishes Final Rule Expanding The Types Of Public Assistance That Could Cause Foreign Nationals To Become Ineligible For Permanent Residence And Other Immigration Benefits.
On August 14, 2019, the United States Department of Homeland Security (DHS) published its final rule setting forth the factors to determine whether a foreign national is likely to become a public charge and thus ineligible for benefits including admission to the United States, extensions and changes of nonimmigrant status while in the United States, and eligibility for U.S. permanent residence. The final rule is due to take effect on October 15, 2019 but could be delayed due to pending federal litigation. If implemented, this new rule will impose additional requirements on both foreign nationals and their U.S. employers, and could result in an increased number of denials of immigration benefits based on a finding that applicants are likely to become a public charge.
Who Is Impacted?
This rule change will impact foreign nationals who are applying for admission to enter the United States, those who are requesting an extension or change of nonimmigrant status while in the U.S., as well as applicants for lawful permanent residence through the United States Citizenship & Immigration Services (USCIS). Additionally, U.S. employers who are requesting extensions or changes of nonimmigrant status for their employees through USCIS will be required to obtain personal information from their foreign national employees regarding their use of public benefits.
Why Is A Public Charge Finding Relevant To Foreign Nationals’ Eligibility For Immigration Benefits?
A foreign national is inadmissible to the United States and ineligible to obtain permanent residence, if he or she is likely to become a “public charge” at any time. When a DHS official determines that an individual is likely to become a public charge, the applicant must be denied admission to the U.S. (if applying for admission at the border). If the individual is in the United States and is applying for permanent residence through USCIS, a public charge finding will result in the denial of his or her application for permanent residence.
This new rule also states DHS may deny an employer’s request to extend or change a foreign national employee’s nonimmigrant status when the foreign national has received more than 12 months of public benefits during any 36 month aggregate period since the date foreign national initially held his or her current nonimmigrant status.
How Is The New Public Charge Definition Different Than The Current Definition?
Historically, in determining whether an applicant is likely to become a public charge, DHS employees considered whether the individual is likely to become “primarily dependent on the Government for subsistence by either the receipt of cash assistance for income maintenance or institutionalization for long-term care at Government expense.” Field Guidance On Deportability And Inadmissibility On Public Charge Grounds, May 26, 1999. Under the revised rule that is scheduled to take place this October, DHS will expand the types of assistance that could result in a finding that an individual is likely to become a public charge. Specifically, the new rule defines a public charge as “an alien who receives one or more public benefits, …, for more than 12 months in the aggregate within any 36 month period …”
Further, under current DHS guidance, the agency only considers whether a foreign national will likely receive cash assistance for income maintenance or will likely become institutionalized for long-term care at Government expense, when deciding whether and individual is subject to a public charge finding. After October 15, 2019, DHS employees must consider whether the individual has used or is likely to use a wide array of cash and non-cash public benefits, including but not limited to the following: Social Security Income (SSI); Temporary Assistance For Need Families (TANF); federal, state or local cash benefits programs; Supplemental Nutrition Assistance Program (SNAP); public housing; and most forms of Medicaid. In determining whether a foreign national is likely to use such benefits, DHS employees are required to consider the totality of the applicant’s circumstances that could cause him or her to use public benefits. At a minimum, DHS employees must consider the following: the applicant’s age; health; family status; education and skills; and assets, resources and financial status. DHS employees are also instructed to assign more weight to certain factors, when deciding under the totality of circumstances test, whether an individual is likely to use at least 12 months of public benefits during any aggregate 36 month period. For example, DHS employees are instructed to negatively and heavily weigh factors such as: medical conditions that will require medical treatment or institutionalization, or will interfere in the applicant’s ability to provide for himself or herself, attend school, or work, and lack of insurance or the resources to secure insurance. By contrast, DHS instructs that its employees should positively and heavily weigh the fact that an applicant is gainfully employed in legal activities and earns at least 250 percent of the Federal Poverty Guidelines for his or her household size.
Are Some Foreign Nationals Exempt From A Finding Of Inadmissibility Based Upon Use Of Public Benefits?
Assistance that was received before the effective date of October 15, 2019 will not result in a finding that an individual is likely to become a public charge. However, for such assistance, DHS employees are instructed that the receipt of cash assistance for income maintenance or the institutionalization for long-term care at Government expense is a negative factor, but is not dispositive as to whether the applicant is likely to become a public charge. Furthermore, certain categories of individuals are not subject to inadmissibility even though they received cash or non-cash assistance that falls within the expanded types of public benefits. These exempt categories include members of the Armed Forces and active duty members of the Ready Reserve component of the Armed Forces and their immediate family members; diplomats and officials of international organizations; asylees, refugees, T and U visa holders.
It is anticipated that the Department of State and the Department of Justice will soon announce similar rule changes. These agencies are responsible for the adjudication of immigration benefits that must be denied if it is determined that an applicant is likely to become a public charge. For example, the Department of State administers the issuance of nonimmigrant and immigrant visas and the Department of Justice is responsible for the adjudication of applications for permanent residence for those individuals who are in deportation proceedings.
If you have received public benefits in the past or could require public assistance, we recommend that you contact immigration counsel to schedule a consultation.