New DHS Rule Redefining Public Charge Inadmissibility Grounds

New US Department of Homeland Security Public Charge Rule Published August 14, 2019

If this existed 100 years ago, my Irish grandparents wouldn’t have gotten into the US

When I was reviewing the new DHS public charge rule today, it brought to mind my grand parents who, just over 100 years ago, immigrated to the US from Ireland. Based on the ship manifests I found on the Ellis Island web site, my grand father entered the US in 1912 with $20 (approximately $500 in today’s money) and my grand mother entered the US in 1922 with $30 (approximately $400 in today’s money). In addition, my grandfather could read a bit but from what my Dad has told me about him, my grandfather needed help spelling out words in the newspaper and he also had epilepsy which seemed to get him fired from jobs. When he died his job indicated on his death certificate was a “Helper” with the gas company. Maybe according to our president, he didn’t amount to much? My grandmother was a maid at the University of Chicago and after she married, she didn’t work because she was busy caring for her 10 children. Under even the current public charge standards, my grandparents would not have been issued visas to come to the US even though their siblings sponsored them. (These days being sponsored by a sibling means more than a 13 or 20 year wait for a visa so they would probably not have even gotten to the point of looking at public charge admissibility). According to today’s standards, an immigrant should have assets of at least 5 times the 125% of the poverty guidelines for the immigrant household size. For example, for a household size of 2, the minimum income is $21,137 and 5 times this amount is $105,685. These 2 people who didn’t seem like they had a lot going for them, according to the Trump administration standards, such as education, health or wealth, but they had 10 children who become good members of US society, including a priest, fire chief and police man as well as lots and lots of grand children including me who became an immigration lawyer.

The new Department of Homeland Security (DHS) rule published yesterday changes the standard by which it determines whether an applicant for adjustment of status (otherwise known as “green card” applicants) and those applying for admission to the US are “likely at anytime to become a public charge” and redefining a public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period.

The final rule at 8 CFR 212.21(b) defines a public benefit as:

  1. Any federal, state, local, or tribal cash assistance for income maintenance, including:
    1. Social Security Income (SSI), 42 U.S.C. 1381 et seq.;
    2. Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.;
    3. Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names);
  2. Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c;
  3. Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f;
  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
  5. Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
  6. Public housing under section 9 of the U.S. Housing Act of 1937

The new public charge rule will not apply to US citizen relatives of noncitizens unless the noncitizen benefit unless they were listed as a beneficiary of the public benefit and the rules allow for some exemptions such as benefits to members of the US Armed Forces and their families.

Who does this new rule effect?

Generally, any non-immigrant or immigrant can be found inadmissible under section 212(a)(4) of the Immigration and Nationality Act (INA) but most often it comes up in family-based immigrant visa or adjustment of status applications. Employment-based visa applicants do not have to demonstrate that they will not be a public charge. The new rule will change the standard that is used by a DHS officer will use to make a determination as to whether someone may be admitted as a Lawful Permanent Resident using the “totality of the circumstances” as opposed to meeting the basic Affidavit of Support requirements which require that an immigrant’s sponsor provide evidence that they have enough income or assets to support the immigrant.

Other Agency Changes

This new rule applies to DHS adjudications but the US  Department of State (DOS), which exercises US immigration law determinations outside the US at US embassies and consulates will revise their policies to be in line with the new DHS rule. In fact, the DOS in 2018 revised its public charge guidance to consular officers which has resulted in a striking rise in visa denials on public charge grounds. As immigration lawyers, we must understand these new rules and policies to ensure that our clients can demonstrate that they are not likely to become a public charge.

Totality of Circumstances

DHS officers can now asses whether someone will be inadmissible under the new totality of circumstances standard looking not just at the affidavit of support but also at the person’s age, health, family status and education. In effect it will make a the current objective test become more subjective giving the USCIS adjudicator to apply a complex test weighing these factors.

There are “heavily weighted” positive and negative factors a DHS adjudicator can consider:

Heavily Weighted Negative Factors:

  • Lack of employability
  • Current Receipt of Public Benefits within 36 months before filing
  • Financial means to pay for medical costs
  • Those previously found inadmissible or deportable based on public charge

Heavily Weighted Positive Factors:

  • Family relationships
  • English ability
  • Education
  • Private health insurance
  • Work history
  • Receipt of grants, contracts and licensures
  • Caregivers and
  • Ability to work in the future

More Forms = More Review Time

In addition to the Form I-864 Affidavit of Support those applying for adjustment status will also need to include the Form I-944, Declaration of Self-Sufficiency with their Form I-485, Application to Register Permanent Residence or Adjust Status. So, this administration is doing what it’s great at: adding more forms, changing DHS policy making a huge bureaucracy change its gears resulting in slower processing of all green card applications. The real effect of this is to not protect US society from those who might take some kind of unearned benefit but to further slow down the processing which results in separation of families.