New Public Charge Rule – Implement or Enjoin?

The Department of Homeland Security’s new public charge rule dramatically expands the scope of the public charge ground of inadmissibility for permanent resident applications. Because of its restrictive impact, the rule has also been the subject of litigation that has delayed its implementation. This update concerns USCIS’s announcement that it would not apply the new rule because of a nationwide district court injunction that has since been limited on appeal.

In response to the July 29, 2020 nationwide injunction issued by the U.S. District Court for the Southern District of New York (SDNY), U.S. Citizenship and Immigration Services announced that it would not apply the DHS public charge rule first implemented on February 24, 2020.

The SDNY order stayed the public charge rule during the declared national health emergency in response to the Covid-19 pandemic. According to the court, the new rule has deterred immigrants from seeking testing and treatment for Covid-19 by causing them to refuse to enroll in Medicaid or other publicly funded health coverage and forgo treatment out of fear that accepting such insurance or care increases their risk of being labeled a “public charge.”

On August 12, 2020, the Second Circuit Court of Appeals limited the nationwide lower court injunction to Vermont, Connecticut and New York. Despite this limited order, USCIS has not yet updated its guidance or added back Form I-944 required by the new rule to its forms page. The agency is reportedly still determining the viability of implementing the policy in the other states.

Without knowing whether the rule will be implemented or enjoined, applicants for permanent residence who are not in Vermont, Connecticut or New York may still choose to prepare Form I-944 with documentation to be ready to comply with the rule as a precautionary matter based on the appellate decision to limit the district court’s nationwide injunction to three states.

What is the new public charge rule?

The new public charge rule increases the number of adjustment applicants likely to be found inadmissible on public charge grounds by tying the definition of “public charge” directly to the receipt of public benefits. The rule also goes well beyond the receipt of public benefits to find applicants inadmissible if they are determined to have a substantial likelihood of receiving one or more public benefit at any time in the future under the totality of the circumstances.

According to the rule, “public charge means an alien who receives one or more public benefits, as defined in subparagraph (b) of this section, for more than 12 months in the aggregate within any 36-month period (such that, for instances, receipt of two benefits in one month counts as two months).” 8 CFR 212.21(a). The rule lists certain programs as public benefits that will cause admissibility problems for applicants who receive or are certified to receive them:

1. Supplemental Security Income (SSI)
2. Temporary Assistance for Needy Families (TANF)
3. Any other federal, state, or local cash benefit programs (general assistance)
4. Supplemental Nutrition Assistance Programs (SNAP)
5. Section 8 Housing Assistance under the Housing Choice Voucher Program
6. Section 8 Project-Based Rental Assistance
7. Medicaid
8. Public Housing under Section 9 of the U.S. Housing Act of 1937.

Specific exceptions apply to emergency Medicaid, services provided under the Individuals with Disabilities Act, school-based services, benefits received by individuals under age 21, benefits received by pregnant women, and public benefits received by military families.

Classes of applicants for permanent residence who are exempt from public charge determinations include asylees, refugees, U and T visa applicants, self-petitioners under the Violence Against Women Act, and applicants under the Haitian Refugee Immigrant Fairness Act of 1998, the Cuban Adjustment Act, and the Nicaraguan Adjustment and Central American Relief Act.

What is the totality of the circumstances test?

The new public charge rule considers seven public charge factors to be weighed in their totality in determining an applicant’s likelihood of becoming a public charge at any time in the future.

The rule considers the applicant’s (1) age, (2) health, (3) family status (household size), (4) assets, resources, and financial status (credit history and credit score), (5) education and skills to be able to maintain employment with sufficient income (as confirmed through employment history with three years of IRS tax transcripts), (6) prospective immigration status and expected period of admission (for nonimmigrants seeking a change of status), and (7) the I-864 affidavit of support regarding the sponsor’s relationship to the applicant in family-based cases to assess the likelihood that the sponsor will provide the required amount of financial support.

The USCIS officer is required to weigh the positive and negative aspects of each factor. The rule identifies heavily weighted negative factors, such as not being employed if authorized to work, receiving of one of more listed public benefits for more than 12 months in the aggregate within any 36-month period, and having a medical condition likely to require extensive medical treatment, and it considers heavily weighted positive factors that include household income or assets of at least 250% of the poverty guidelines and having private health insurance coverage.

How has the public charge rule changed?

The new form I-944 declaration of self-sufficiency shifts the focus for public charge questions from the U.S. petitioner to the immigrant. Previously, the focus had been on the petitioner as the sponsor for the I-864 affidavit of support. A valid I-864 affidavit of support had been enough to avoid an inadmissibility finding on public charge grounds. However, the new public charge rule imposes substantial documentation requirements on the individual applying for permanent residence. The USCIS officer will need to assess the intending immigrant’s earning capacity and ability to remain self-sufficient. The new public charge rule requires a close examination of the immigrant’s age, health, credit scores, income, assets, and health insurance. Public charge bonds are available to overcome inadmissibility findings on public charge grounds alone, but the DHS has discretion whether to accept a public charge bond and the set bond amounts are unreviewable.

Please contact one of the D&G lawyers if you have questions about the new public charge rule, the required Form I-944, or current USCIS public charge policy.