Updated Rule: The Public Charge Ground of Inadmissibility

By: Sara Cross

On August 14, 2019, the Department of Homeland Security (“DHS”) issued new regulations for determining whether an applicant for admission, change of status or adjustment of status, is likely at any time to become a public charge. These new regulations apply to all application submitted on or after October 15, 2019.

These new regulations revise the longstanding definition of public charge, while expanding the range of factors that may be considered in making a public charge determination. The definition of public charge is not defined specifically in the Immigration and Nationality Act (“INA”). Therefore, the definitions rests on regulatory guidance and interpretation. The longstanding definition of public charge, which governs all applications submitted before October 15, 2019, is an alien “who is likely to become primarily dependent 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 the government’s expense.”

For decades, a person seeking adjustment of status could avoid a public charge finding by submitting an affidavit of support (Form I-864) from one or more sponsors, showing sufficient income and assets from the sponsor(s) to enable them to financially support the applicant if it should become necessary. Historically, demonstrated income and assets 125% above the yearly Federal Poverty Guidelines has been considered sufficient.

However, public charge is now defined under the new regulations as an alien who “is more likely than not at any time in the future, to receive one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.” This new rule includes the caveat that receipt of two public benefits within one single month period would actually count as 2 months receipt of public benefits. Within this rule, what is considered a public benefit has expanded as well. Public benefits now include any cash benefits for income maintenance, most forms of Medicaid, the Supplemental Nutrition Assistance Program (“SNAP”), housing and rental assistance provided through Section 8, Temporary Assistance to Needy Families (“TANF”), and Supplemental Security Income (“SSI”).

To aid in determining whether the alien “is more likely than not” to become a public charge, the new regulations contain a list of weighted positive and negative factors which the adjudicator is instructed to consider when examining the applicant. Importantly, the consideration of all factors must be evaluated within the totality of the applicant’s circumstances. These weighted factors include, but aren’t limited to, evidence of the alien’s health and whether they have private medical insurance, their household income and size, their assets and resources, the age of the applicant, the level of education they have completed and any associated certifications or licenses, the applicant’s credit history and credit score, their history of employment and any periods of unemployment, whether they have paid taxes in the U.S., their proficiency in English, and receipt of any public benefits in the past even if below the durational threshold. Under the new regulation, a sufficient affidavit of support is now only one of the factors to be considered among all of the others outlined above.

When filing for adjustment of status after October 15, 2019, an applicant must submit with their application not only the affidavit of support, but they must also complete and submit a new document, Form I-944 Declaration of Self-Sufficiency, in order to demonstrate that they are not likely to become a public charge. If the applicant is found inadmissible as a public charge under the new regulations, they may submit a public charge bond at the discretion of DHS. The public charge bonds begin at a minimum of $8,100 and remain in place until the alien reaches his/her five-year anniversary of becoming a legal permanent resident or becomes a naturalized U.S. citizen.

Additionally, a number of groups are exempt from these new public charge regulations; these include, but are not limited to, asylees, VAWA self-petitioners, and those seeking to adjust from T or U nonimmigrant status.

It is important that adjudicators take the applicants total circumstances and balance the equities in a reasonable and forward-looking manner in each case. That is why it is important to hire a knowledgeable immigration attorney who can evaluate a person’s specific and unique circumstances and determine the best way to proceed when assisting them in obtaining permanent resident status in the U.S under these new regulations.