• by Santhosh Rao

INTRODUCTION
On August 14, 2019, USCIS published an advance copy of a final rule regarding Inadmissibility on Public Charge Grounds. This rule amends DHS regulations by prescribing how DHS will determine whether an alien applying for admission or adjustment of status is inadmissible to the United States. It is under section 212(a)(4) of the Immigration and Nationality Act (INA or the Act). The rule will be effective 60 days post publication.

Those applications and petitions which are current pending with USCIS on the effective date of the rule will not be subject to this rule. This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds. We at GLF had earlier discussed the proposed rule published on September 2018 in our newsletter titled “Use of Public Benefits May Disqualify You from Getting A Green Card!”.

IMPORTANT ELEMENTS OF FINAL RULE

1. The final rule includes definitions of certain terms critical to the public charge determination, such as “public charge” and “public benefit,” which are not defined in the statute;
2. The rule broadens the programs that the federal government will consider in public charge determinations to include previously excluded health, nutrition, and housing programs;
3. This rule contains a list of negative and positive factors that DHS will consider as part of this determination, and directs officers to consider these factors in the totality of the alien’s circumstances;
4. Under this rule, applicants for adjustment of status who are subject to the public charge ground of inadmissibility must file a Declaration of Self-Sufficiency (Form I-944) with their Application to Register Permanent Residence or Adjust Status (Form I-485) and Form I-864, Affidavit of Support to demonstrate they are not likely to become a public charge. Failure to submit each form, may result in a rejection or a denial without a prior issuance of a Request for Evidence or Notice of Intent to Deny;
5. This rule addresses how USCIS will have authority to issue public charge bonds under section 213 of the Act in the context of applications for adjustment of status;
6. This rule clarifies that DHS will only consider public benefits received directly by the alien, or where the alien is a listed beneficiary and will not consider public benefits received on behalf of another person;
7. The rule also makes nonimmigrant aliens who have received certain public benefits above a specific threshold generally ineligible for extension of stay and change of status
   WHO WILL BE AFFECTED?

The final rule will apply to individuals seeking admission to the United States from abroad on immigrant or nonimmigrants visas; to adjust their status to that of lawful permanent residents from within the United States; and individuals within the United States who hold a temporary visa and seek to either extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification.

However, this regulation does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others. This rule will not affect any U.S. citizen, even if they are related to an alien subject to the public charge ground of inadmissibility

NEW DEFINITION OF “PUBLIC CHARGE” & “PUBLIC BENEFIT”
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 rule further defines the term “public benefit” to include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs. It shall exclude 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 aliens under 21 and pregnant women; Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and Medicaid benefits for emergency medical services.

CONCLUSION
As per USCIS, this rule intents that aliens seeking to enter and remain in the United States are self-sufficient and they will not be a burden to the U.S. This looks like another aggressive attempt by Trump Administration towards restricting illegal immigrants. This rule will likely increase confusion and fear broadly across immigrant families and may cause them to retreat from any sort of public assistance (Medicaid, SNAP, SSI, housing etc.) out of fear of immigration consequences in future. Also, this rule has been challenged by Santa Clara and San Francisco counties in a joint Lawsuit claiming the final rule on Inadmissibility On Public Charge Grounds to be unlawful and an irrational attack on immigrant communities.

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At GLF will continue to follow further developments in this matter and we will provide updates through our Newsletter as and when they become available.

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