Amended Public Charge Rule Will Not Go Into Effect on October 15th

Earlier this afternoon, a federal judge in New York issued an injunction against the recently amended “public charge” rule. We discussed the amended public charge rule a few weeks ago. People deemed to be a public charge may be prevented from applying for permanent residency. The amended rule altered the definition of “public charge” to include an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period. Additionally, it was broadened to include many common services, such as public housing assistance, food stamps, supplemental income, and certain Medicaid costs.

The temporary injunction issued today will prevent the amended public charge rule from taking effect on Oct. 15.

The rule is being challenged in several federal courts by immigrants’ rights groups and more than a dozen state attorneys general. While the public charge requirement has been a long-standing rule, it has not previously been defined this specifically.

As the rule continues working its way through the court system, we will continue to monitor it and provide updates. But for now, people filing for permanent residency will not be subjected to the newly amended public charge rule.

For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

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.