Details of the New Public Charge Rule (Effective from December 23, 2022)

Starting December 23, 2022, a new Public Charge Ground of Inadmissibility final rule is in effect (see the full USCIS policy alert).     The final rule details how USCIS will apply the public charge ground of inadmissibility and is generally consistent with the 1999 guidance which has been used over the past years.     The new final rule applies to all applications filed on or after December 23, 2022.

What is the Public Charge Rule?

The Immigration and Nationality Act (“INA”) provides (since at least 1982) that an applicant for a visa, admission, or adjustment of status is inadmissible if in the opinion of the consular officer, immigration officer, or immigration judge at the time of application for a visa, admission, or adjustment of status, the applicant is likely at any time to become a “public charge.”

Under the new guidance, noncitizens are considered likely at any time to become a public charge if they are likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.

Public Cash Assistance

The rule defines public cash assistance for income maintenance as,

• Supplemental Security Income (SSI);
• Cash assistance for income maintenance under the Temporary Assistance for Needy Families
  (TANF) program; or
• State, tribal, territorial, or local cash benefit programs for income maintenance, commonly called “General Assistance.

Note that many other benefits, some of which are cash-based, are NOT a public charge factors.   This is important, especially after the Trump administration’s attempts to broaden the rule.   Please see below and also the actual rule for a listing of many other types of assistance which are NOT considered to be public cash.

Long-term Institutionalization at Government Expense

For the purpose of a public charge inadmissibility determination, “long-term institutionalization at government expense” means government assistance for long-term institutionalization (in the case of
Medicaid, limited to institutional services under section 1905(a) of the Social Security Act) received by a
beneficiary, including in a nursing facility or mental health institution.

It is important to note that sporadic or intermittent periods of institutionalization, even on recurring basis, are not considered “long-term.”  Additionally, according to the Final Rule, no other services paid for by Medicaid, including home and community based services (HCBS), and no services provided under the Children’s Health Insurance Program (CHIP), are considered as long-term institutionalization at government expense.

Receipt (of Public Benefits)

“Receipt” occurs only when the applicant is the beneficiary of the benefit.   Benefits received by relatives (including children) or benefits received on behalf of other parties are not considered “received” by the applicant.    Similarly, applying for a benefit (without receiving it) OR an approval of a benefit for future receipt are also not considered “receipt.”

Simply put, the sole act of applying for a covered public charge benefit is not considered a “receipt” of such benefit and should not trigger public charge until the benefit is actually “received.”

Who is Subject to the Public Charge Rule Determination?

The rule applies very broadly – anyone applying for a visa, admission or adjustment of status is subject to the rule and must demonstrate that they are not likely to become a public charge.       In the context of I-485 adjustment of status applicants,  all I-485 applicants are generally subject to the public charge rule including family, employment and diversity visa-based applicants to adjust status.

There are certain limited exemptions, outlined in the rule, including asylees and refugees and a number of others.  Please refer to the exceptions in the rule or in the USCIS Policy Alert.

As a result, it is very important to consider and analyze the public charge rule with (almost) every I-485 Adjustment of Status application.

Forward-Looking Public Charge Determination Based on the Totality of the Circumstances and Many Factors

The public charge inadmissibility determination is prospective (forward-looking) and based on the totality of the applicant’s circumstances.   All relevant information in the record can be considered and, as a result, prior receipt of public-charge benefits do not necessarily disqualify an applicant.

Adjudicators are instructed to look as to whether the applicant is likely to become a public charge in the future by looking at a variety of factors.   This includes age, health, family status, assets, resources and financial status and education skills.    Plus an I-864 Affidavit of Support, for cases where it is required.  Adjudicators are asked to weigh all of these factors with no factor, on its own, being determinative.

Example:  a 25-year old recent college graduate lives with their parent and is unemployed.   No major health issues and there is an affidavit of support provided by a qualified sponsor.   According to the USCIS policy guidance, these factors will not warrant finding of public charge in the totality of the circumstances.

Contrast with: a single 55-year old applicant, living alone, no medical conditions.   No history of employment for the last 10 years, low income solely from public cash assistance, low net worth/savings.  According to USCIS, this scenario will likely lead to a public charge determination due to the likelihood of the applicant needing public cash assistance in the future and no demonstrated prospect of obtaining employment or another source of income.

Benefits NOT Considered to be Public Charge

The final rule specifically excludes many public benefits from public charge.  This a specific contrast to the attempted public charge revisions during the Trump administration.   Also, benefits received by applicant’s family members are not considered.

As noted in the final rule, USCIS will not consider receipt or approval of benefits such as:

• Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs;
• Children’s Health Insurance Program (CHIP);
• Medicaid (other than for long-term use of institutional services under section 1905(a) of the
  Social Security Act);
• Housing benefits;
• Any benefits related to immunizations or testing for communicable diseases; or
• Other supplemental or special-purpose benefits.

Similarly, certain public assistance and programs are NOT considered to be public charge:

• Treatments or preventative services related to COVID-19, including vaccinations;
• The use of home and community-based services (HCBS);
• Any services provided under the Robert T. Stafford Disaster Relief and Emergency Assistance Act
  (Stafford Act)268 or comparable disaster assistance provided by state, tribal, territorial, or local
  governments;
• Benefits under the Emergency Food Assistance Act (TEFAP);269
• Child and Adult Care Food Program (CACFP);
• School lunch programs;
• Cash payments that are provided for childcare assistance or other supplemental, special
  purpose cash assistance;
• Cash payments that are provided as part of pandemic or disaster relief funds, such as the
  American Rescue Plan Act;
• …and many more – see the Public Policy Alert (pages 38-40) for more details.

Conclusion

The 2022 Final Rule is a welcome (and detailed) clarification of the factors that will be used to determine inadmissibility.   The Trump administration’s attempted 2019 rule changes generated an immense amount of confusion and created a chilling effect among applicants not only with respect to immigration benefits but also taking advantage of multitude of federal, state and local programs and benefits.

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