New Public Charge Rule

The new public charge rule came into effect in February 2020. The new rule is said to memorialize a long-standing immigration principle that the Immigration and Nationality Act (INA) is mean to exclude immigrants that are likely to become a public charge. After much litigation, the Public Charge Rule is defined as:

“any alien who, in the opinion of the counselor office at the time of the application for visa, or in the opinion of the Attorney General at the time of the application for admission or adjustment of status, is likely at any time to become a public charge, is inadmissible. INA 2121(a)(4) & USC 1182 (a)(4)”

The rule considers whether an individual will be a public charge at any time in the future. Department of Homeland Security and Department of Justice considers the totality of the circumstances and makes prospective looking determinations of whether an applicant will become a public charge. The final rule only applies to certain aliens applying for immigration benefits, such as:

  • Applicants for adjustment of status in the US;
  • Applicants for an immigrant abroad;
  • Applicants for nonimmigrant visa abroad;
  • Applicants for admission at the US border who have been granted an immigrant or nonimmigrant visa, and
  • Nonimmigrants applying for an extension or change of status within the US.

These specific categories of applicants are significantly affected by the final rule, but pursuant to the INA 2121(a)(4), all applicants for admission into the US are subject to the public charge rule, unless specifically exempt.

Non-citizens seeking legal permanent residency based on a family relationship are most affected. This includes spouses, children, and unmarried adult sons and daughters of a US citizens or Legal Permanent Residency (LPR) and the parents, siblings, and married sons and daughters of a US citizens. Additionally, LPR’s that are absent from the US for more than 180 are also subject to the grounds of inadmissibility and may be questioned as to whether they are likely to become a public charge.

The minimum factors codified in the final rule, include but are not limited to age, health, family status, assets, resources, and financial status, as well as education and skills. USCIS will also be looking at the medication conditions of the application and whether the application will require extensive medication treatment or institutionalization, or if it will interfere with the alien’s ability to provide and care for himself/herself, or if it will impeded their ability to work or go to school. The Trump Administration has also mandated that the application must provide proof of health insurance. If an applicant does have a health condition, they are required to show that they have health insurance or the necessary financial resources to pay for it. If they don’t have health insurance or have enough financial means, it will weigh negatively against the applicant.

Under the rule, the applicant must show an annual gross income of at least 125 percent of the federal poverty guidelines and must produce three recent years of their Federal Tax Returns. Assets can also be considered to supplement the applicant’s income, but such assets must be able to converted to cash within one year. If the applicant has assets out of the United States, it would also be considered relevant. The applicants must have significant assets in order to be considered by USCIS as relevant, these include stocks, bonds, retirement accounts, vehicles, and real estate.

The most significant and highly influential part of the rule states that any applicant that has received or is more likely than not to receive any of these nine public benefits for more than 12 months, within the aggregate 36-month is inadmissible. The following benefits are as follows:

  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families
  • Any Federal, State, local, or tribal cash benefit programs for income maintenance (often called general assistance in the state context, but which may exist under other names);
  • Supplemental Nutrition Assistance Program (formerly called food stamps);
  • Section 8 Housing Assistance under the Housing Choice Voucher Program;
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
  • Public Housing (under the Housing Act of 1937, 42 USC 1437 et seq.); and
  • Federally funded Medicaid (with certain exclusions).

An applicant’s credit history and civil liabilities will also negatively affect an applicant as well. If an applicant has outstanding credit cards, home loans, student loans, or a negative credit history, it will significantly affect an applicant’s standing. Therefore, the new rule requires an applicant to provide information concerning credit history, which includes a US Credit Report.

The new public charge rule is relatively new and there are various unknowns that are still to be determined by the courts. Several Federal Districts have determined that the final rule violates the Administrative Procedures Act and the Constitution. These cases are currently subject to appeal and will likely be decided by the Supreme Court of the United States. SCOTUS has allowed the rule to go into effect, but it did not rule on the merits. Additionally, it is unknown if each factor will be given equal weight or if other factors will be considered.

While understanding the basic fundamentals of the rule, it is helpful to consult with an immigration lawyer for assistance with detailed questions and requests for immigration strategy support and representation. Kraus-Parr, Morrow, Weber provides immigration representation for clients in North Dakota and Minnesota.