Analysis of New Public Charge Rule

The Department of Homeland Security recently announced they are issuing a final rule regarding foreign nationals who may be likely to become public charges. Section 212(a)(4) of the Immigration and Nationality Act states that a foreign national may be inadmissible if he or she is likely to become a public charge. For the past twenty years, public charge referred to “an alien who has become or who is likely to become ‘primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.’” However, this new rule greatly expands the ways in which a foreign national can be found inadmissible based on his or her likelihood of becoming a public charge.

Specifically, this new rule expands the public benefits that could lead to a finding of inadmissibility; the list of benefits that can lead to a finding of inadmissibility now includes cash benefits for income maintenance, some housing assistance programs,  Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), and Medicaid (with some exceptions). Anyone who receives one or more of these benefits for an aggregate of 12 months within any 36-month period would be found inadmissible to the United States.

In addition, the rule states that USCIS will consider other factors to determine whether a foreign national is likely to become a public charge in the future. Such factors can include education, age, current employment and work history, assets and savings, credit score, and debts and other financial liabilities. USCIS will also consider household income in relation to federal poverty guidelines. However, given the number of factors involved in determining whether a foreign national is likely to become a public charge in the future, it is conceivably possible that a person could have an income that exceeds federal poverty guidelines and still be found to be inadmissible.

This new rule will take effect on October 15, 2019. The rule does not apply to foreign nationals applying under humanitarian programs, including refuges, asylees, special immigrant juveniles, and victims of domestic violence protected under the Violence Against Women Act.