March 9th Public Charge changes

On March 9th the Biden administration notified the United States Supreme court that it would no longer defend the Trump-era policy changes regarding the public charge rule. On March 15th the Department of Homeland Security filed for public inspection with the Federal Register a new rule that formally removed all of the changes to the public charge rule that were enacted by the Trump administration. As such the public charge rule has now reverted to the 1999 standards which are detailed below. What is a public Charge? The Department of Justice defines a public charge as a noncitizen who has become or is likely to become “primarily depended on the government for subsistence as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.”

How does this affect admission into the United States? A noncitizen who is attempting to adjust their status to that of a noncitizen lawfully admitted for permanent residence is inadmissible if that person “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” The standard for determining inadmissibility requires service officers to examine the “totality of a noncitizen’s circumstances at the time of his or her application.” The Attorney General has ruled that some specific circumstances such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting a noncitizen is likely to be cast on the public must be present. However, a healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where he or she has friends or relatives in the United States who have indicated their ability and willingness to come to their assistance in case of an emergency. How does current receipt of cash benefits or current institutionalization affect admissibility?

If at the time of application for admission or adjustment a noncitizen is receiving a cash public assistance for income maintenance or is institutionalized for long term care that benefit should be taken into account under the totality of circumstances. This means that the service officer should look at the circumstances surrounding these needs and make a forward-looking determination regarding the likelihood that the noncitizen will become a public charge. The more time that has passed since a noncitizen received benefits or was institutionalized means the less weight these factors will have as a predictor of future need for these benefits. Past receipt of non-cash benefits (other than institutionalization for long term care) should not be taken into account when determining the future possibility of becoming a public charge. Under very rare circumstances a noncitizen can be asked to repay a government agency for benefits and then be deported if they do not do so.

What groups are exempt from public charge designation?

Refugees and asylees are exempt from public charge designation per current laws. Also, individuals who are named in specific legal statutes such as those who fall under The Cuban Adjustment Act (CAA) or The Nicaraguan Adjustment and Central American Relief Act (NACARA) are exempt from public charge designations.

What benefits do count towards a public charge designation? The programs of Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) cash assistance, State and local cash assistance programs that provide benefits for income maintenance, programs (like Medicaid) which supports a non-citizen while institutionalized in a nursing home or mental institution. What benefits do not count towards a public charge designation? Medicaid and other health insurance and health services (including public assistance for immunizations, Children’s Health Insurance Program (CHIP), Nutrition programs, including SNAP and WIC, Housing benefits, Child care services, Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP), Emergency disaster relief, Foster care and adoption assistance, Educational assistance, including benefits under the Head Start Act and aid for elementary, secondary, or higher education, Job training programs, public schools, school lunches, emergency medical care or other non-cash benefits.

Generally, any program which is of a supplemental nature and not sufficient resources to support an individual or family. As such some cash assistance does increase the chances of a public charge designation. Below is a direct link to the 1999 field guidance on making a public charge determination:

****Update: March 11th, 2020 

On March 9th the Biden administration notified the United States Supreme court that it would no longer defend the Trump-era policy changes regarding the public charge rule. This means that the public charge rule changes enacted by the Trump administration will not be in effect at any time in the future. Please see the link below to see the current standards being used by USCIS.

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