On September 9, 2022, Department of Homeland Security (DHS) issued the Final Rule on Public Charge Ground of Inadmissibility (Final Rule), which will become effective on December 23, 2022.[1] In the Final Rule, DHS acknowledges the chilling effects caused by the 2019 Public Charge rule that had deterred immigrant families from enrolling in healthcare and public benefits safety net programs. The Final Rule repeals the 2019 Public Charge rule and codifies the 1999 Field Guidance on Public Charge and provides more clarity on how immigration officials and consular officers will make public charge determination. The Final Rule applies only when an individual is seeking admission as an immigrant,[2] or applying for adjustment of status[3] to become a lawful permanent resident. Public charge evaluation is not relevant in green card renewal or at naturalization.
Which benefits are included in public charge determination?
One critical aspect of the Final Rule is that it defines “likely at any time to become a public charge” to mean “primarily dependent on government for subsistence,”[4] as demonstrated by the receipt of two categories of public benefits below listed:
“Primary dependence” connotes significant reliance on government for support that is something more than merely transient or supplementary.
A bright-line definition of “receipt”
The Final Rule also clarifies that receipt of such benefits is relevant for public charge determination only if the individual seeking an immigrant visa/lawful permanent residency is the beneficiary of the cash benefits or Medicaid-paid long-term institutionalization. The Final Rule makes clear that the following circumstances do not constitute “receipt”[9]:
- Receipt of benefits solely for others, including their children and household members;[10]
- Approval for future receipt of benefits even for the individual applying for lawful permanent residency; or
- Application for benefits for oneself or on behalf of another.
Long-term institutionalization does not include (1) imprisonment, or institutionalization for short periods for rehabilitation.[11]
The Final Rule makes clear that the receipt of other government assistance such as the following does not factor into the public charge determination[12]:
- Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs,
- Children’s Health Insurance Program (CHIP),
- Medicaid (other than for long-term use of institution services under section 1905(a) of the Social Security Act),
- Housing benefits
- Any benefits related to immunizations or testing for communicable disease, or
- Other supplemental or special-purpose benefits.
In the public notice, DHS also clarifies that Earned Income Tax Credit and Child Tax Credit will not factor into a public charge determination.[13]
The Final Rule defines “government” to mean “Federal, State, Tribal, territorial, or local government entity or entities of the United States.”[14] It does not include any non-governmental entities that may be administering federal funds as pass-through entities.
Totality of Circumstances test
The Final Rule establishes five minimum statutory factors[15] that immigration officials and consular officers must consider in applying the “totality of circumstances”[16] evaluation of whether an individual is likely to become a “public charge”:
- Age
- Health
- Family status
- Assets, resources, and financial status
- Education and skills
The Final Rule makes clear that DHS in making a public charge determination will favorably consider an Affidavit of Support, when required, that meets the statutory standard.[17] It also makes clear that one’s past or present receipt of public benefits along is not conclusive that one will become a public charge. DHS will instead consider (1) the amount, (2) the duration of receipt, and (3) recency of such receipt in its public charge evaluation. The final rule also makes clear that an individual’s disability is not alone a sufficient basis to determine whether one is likely to become a public charge. In evaluating one’s use of long-term institutionalization, DHS may not violate the Americans with Disability Act or the Rehabilitative Act.[18] Any DHS finding that one is likely to become a public charge must be done in writing that articulates the reason(s) of the finding and explicitly states how the official applies the statutory factors.[19]
The Final Rule also provides a detailed list of individuals who are exempt[20] from the public charge consideration, these include, among others, refugees, asylees, Afghan and Iraqi Interpreters, Cuban and Haitian entrants, Nicaraguans and Central Americans applying for adjustment of status under NACARA, Haitians applying for adjustment under Haitian Refugee Immigration Fairness Act, Lautenberg parolees, Special Immigrant Juveniles, individuals eligible for Registry under INA Section 249, individuals applying for or reregistering for Temporary Protected Status, applicants and recipients of U and T visa. In cases where individuals receive public benefits while in exempt status, the Final Rule also makes clear that DHS will not consider benefits received by the individual during the exempt period or for which the individual received a waiver.[21] In cases where DHS determine that an individual is likely to become a public charge, the Final Rule provides the procedures for USCIS or the consular officers to accept a public charge bond and procedures for cancelling such bond.[22]
Conclusion
The Final Rule provides the much-needed clarity to how DHS makes public charge determination. It is, however, important to note that the public charge rule does not change the underlying eligibility for federal means-tested public benefits program. Very few individuals without immigration status unless grandfathered under the Personal Responsibility and Work Opportunity Reconciliation Act[23] are eligible for federal benefits since 1996. The ultimate solution to achieving income and health equity in immigrant households is to recognize immigrants’ significant contribution to this country and completely repeal the public charge rule that has been in existence since the 1880s.
~ Written by Zenobia Lai, Executive Director
[1] 87 Fed. Reg. 55472 (Sept. 9, 2022).
[2] Immigration and Nationality Act (INA), Sec. 235, 8 U.S.C. Sec. 1255.
[3] INA Sec. 245, 8 U.S.C. Sec. 1255.
[4] 8 C.F.R. Sec. 212.21(a).
[5] 8 C.F.R. Sec. 212.21(b).
[6] 42 U.S.C. Sec. 1381, et seq.
[7] 42 U.S.C. Sec. 601, et seq.
[8] 8 C.F.R. Sec. 212.21(c).
[9] 8 C.F.R. Sec. 212.21(d).
[10] Household includes (1) the alien; (2) the alien’s spouse, if physically residing with the alien; (3) if physically residing with the alien, the alien’s parents, the alien’s unmarried siblings under 21 years of age, and the alien’s children as defined in section (101)(b)(1) of the Act; (4) any other individuals (including a spouse or child as defined in section 101(b)(1) of the Act not physically residing with the alien) who are listed as dependents on the alien’s federal income tax return; and (5) any other individual(s) who list the alien as a dependent on their federal income tax return. 8 C.F.R. Sec. 212.21(f).
[11] 8 C.F.R. Sec. 212.21(c).
[12] 8 C.F.R Sec. 212.22 (a)(3).
[13] 87 Fed. Reg. at 55526.
[14] 8 C.F.R. 212,21(e).
[15] 8 C.F.R Sec. 212.22(a).
[16] 8 C.F.R. Sec. 212.22(b).
[17] 8 C.F.R. Sec. 212.22(a)(2).
[18] 8 C.F.R. Sec. 212.22 (a)(3), (4).
[19] 8 C.F.R. Sec. 212.22 (c).
[20] 8 C.F.R. Sec. 212.23 (a).
[21] 8 C.F.R. Sec. 212.22(d), (e).
[22] 8 C.F.R. Sec. 103.6(c)(1), 8 C.F.R. Sec. 213.1.
[23] Public Law 104-193, tit. IV, 8 U.S.C. Sec. 1601-1646.
