DHS Issues Final Public Charge Rule

The U.S. Department of Homeland Security (DHS) today announced a final public charge rule that would deny green cards and visas to significantly more immigrants who use federal, state, and local government benefits. The “public charge” rule, which was proposed in October 2018 and drew 266,077 comments (the vast majority of which, DHS acknowledged, opposed the rule), is expected to be published in the Federal Register on Wednesday, August 14, 2019 and will go into effect 60 days later.

The final rule changes how U.S. Citizenship and Immigration Services (USCIS) determines that an immigrant is likely to become a public charge, and thus deem that individual “inadmissible,” i.e., deny the person a green card or visa. Under the final rule, a person is inadmissible if that person is more likely than not at any time in the future to become a public charge, as determined by a totality of the circumstances test.

One of the most significant changes in the proposed rule was expanding the list of public benefits that count as negative factors against an immigrant applicant’s visa or green card application. Despite the number of comments opposing the expansion, the final rule incorporates nearly all of the public benefits in the proposed rule. Under the final rule, use of the following public benefits will count negatively towards the public charge determination:

• *Supplemental Security Income (SSI), 42 U.S.C. 1831 et seq.;
• *Temporary Assistance to Needy Families (TANF), 42 U.S.C. 601 et seq.;
• *Federal, state, and local cash benefits for income maintenance (often called “General Assistance” in the state context, but which also exist under other names);
• Supplemental Nutrition Assistance Program (SNAP, or food stamps), 7 U.S.C. 2011 – 2036c;
• Medicaid under 42 U.S.C. 1396 et seq. (Other than emergency medical services and certain disability services provided by schools, with a new exclusion for Medicaid benefits received by immigrants under the age of 21 and pregnant women during pregnancy and 60 days after pregnancy);
• Section 8 Housing Assistance under the Housing Choice Voucher Program, 42 U.S.C. 1437f;
• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation), 42 U.S.C. 1437f; and
• Public housing under Section 9 of the U.S. Housing Act of 1937.

*Already counted under the current public charge test

The three types of public benefits that were in the proposed rule but are not included in the final rule are:

• Long-term institutionalization at the government’s expense (DHS rationalized that the types of benefits it considered in the past, and intends to consider under the final rule, are already included in the final rule, such as TANF, SSI, and Medicaid); and
• Medicare Part D premium and cost sharing subsidies (DHS rationalized that the nature of these Medicare Part D benefits are part of an overall benefit scheme that contains extensive work requirements).
• Children’s Health Insurance Program (CHIP) (DHS specifically requested comment on whether to include CHIP in the expanded list of public benefits, but chose not to).

Any public benefit not specifically listed in the final rule will not be used in the public charge determination. These include:

• Community Services Block Grant (CSBG)
• Low Income Home Energy Assistance Program (LIHEAP)
• Head Start and Early Head Start
• Weatherization (WAP)
• Women, Infants, and Children (WIC)
• Employment or job-training
• School breakfast and lunch
• Transportation vouchers or non-cash transportation services
• Non-cash TANF benefits
• Federal Earned Income Tax Credit and Child Tax Credit
• Disaster relief
• Emergency medical assistance
• Entirely state, local, or tribal programs (other than cash)

The final rule also makes a change to the threshold amount and duration of public benefits that an individual must receive before DHS will consider that person to have received a public benefit. The final rule adopts a single threshold for all public benefits—an individual who receives one or more of the listed benefits for more than 12 months within any 36-month period. Further, receipt of two benefits for the same month counts as receiving public benefits for two months. However, DHS may consider receipt of benefits below that threshold, to the extent it is relevant in evaluating the totality of the individual’s circumstances. In other words, DHS may consider and give appropriate weight to the past receipt of even a small amount of public benefits if it is indicative, to some degree, of the person’s likelihood of becoming a public charge at any time in the future. 

The final rule clarifies that when a person receives, applies for, or obtains a certification for public benefits solely on behalf of another person, DHS does not consider the person acting on behalf of another to have received the benefit.

Certain types of humanitarian-based immigration programs continue to be exempt from the public charge test. These include individuals applying as asylees, refugees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners).

USCIS will apply the public charge inadmissibility final rule only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date of the rule. Applications and petitions already pending with USCIS on the effective date of the final rule (postmarked and accepted by USCIS) will be adjudicated based on the current public charge rule.

CAPLAW is continuing its analysis of the final public charge rule and will issue additional updates and resources for the Community Action network as necessary. For information about the proposed rule, see CAPLAW’s Public Charge FAQs.

This News Flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0467-02. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this news flash are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.