USCIS and DHS Publish Final Rule on Public Charge Grounds for Inadmissibility

On Wednesday August 14, USCIS and DHS published in the Federal Register the new final rule amending the regulations by which DHS determines admissibility on “public charge” grounds. Specifically, this is a change in the rule and a clarification of the definitions of what constitute a “public charge” and “public charge benefits.” The rule will go into effect at 12:00 a.m. Eastern Time on October 15, 2019, and cases filed prior to this date will be adjudicated based on the previous guidelines. The new rule will not affect currently pending cases. If any foreign nationals have received assistance from one of the programs designated below, they should advise our office at the initiation of any nonimmigrant or immigrant process so we can evaluate if the receipt will pose a problem.

The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The agency considers the following programs as grounds for inadmissibility:

  • Supplemental security income (SSI)
  • Temporary Assistance to Needy Families (TANF)
  • State general relief or general assistance
  • Medicaid programs covering institutionalization for long term care
  • Nonemergency Medicaid
  • Supplemental nutrition and assistance program (SNAP, formerly food stamps)
  • Section 8 Housing Choice Voucher Program
  • Section 8 Project-Based rental assistance
  • Public Housing

The rule will also affect those in nonimmigrant status if they have received any of the aforementioned public benefits above the designated threshold (12 months within any 36-month period). If they do receive such benefits, they will no longer be eligible for an extension or change of state.

The final rule does not include receipt or potential receipt of the following benefit programs as grounds for inadmissibility:

  • Emergency medical assistance
  • Disaster relief
  • National school lunch or school breakfast programs
  • Foster care and adoption
  • Head Start
  • Child Health Insurance Program including Medicaid for Aliens under 21
  • Earned Income Tax Credit or Child Tax Credit
  • Public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children
  • Public benefits received by certain international adoptees and children acquiring U.S. citizenship
  • Medicaid for pregnant women
  • Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act)

Benefits received by the applicant’s U.S. citizen children or other family members are not considered in determining whether the applicant is likely to become a public charge. The final rule also clarifies that DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person.

USCIS will exercise its discretionary authority, in limited circumstances, to offer an otherwise inadmissible foreign national the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.

If a foreign national has received any of the public benefits listed above, we urge them to contact our office so that we can advise on the potential impact and the best possible course of action.

H-4 Spouses of H-1B Visa Holders Face Work Ban

The federal government expects to publish a rule this month that will remove the authorization to work from around 100,000 spouses of H-1B visa holders. Husbands and wives of H-1B visa holders have been allowed to work since 2015.

First proposed by Homeland Security in 2017, the rule has been repeatedly delayed. The White House’s Office of Information and Regulatory Affairs has yet to issue approval of the rule, but has until June 20 to review it. Publication of the rule triggers a public-comment period, which can last from a typical 30-60 days to upwards of 180 days.

News outlets that have spoken with H-4 holders have expressed uncertainty as to whether they will remain in the U.S. or leave, along with their families. In addition to public opinion, the rule may face legal challenges, as pushback can be expected from the many companies that benefit from the H-1B program and face the loss of top talent.

We will continue to monitor updates of this development.