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Final Rule Makes it Possible to Deny Permanent Residence Based on Receipt of Certain Public Benefits

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USCIS will be publishing a final rule on August 14, 2019, in the Federal Register, that expands the list of public benefits that make a foreign national ineligible to obtain permanent residence and/or an immigrant or nonimmigrant visa.

The Immigration and Nationality Act makes inadmissible and therefore (1) ineligible for a visa, (2) ineligible for admission and (3) ineligible for adjustment of status, any alien who, in the opinion of the DHS is likely at any time to become a public charge.

The process of determining whether an alien is likely to become a public charge is called a “public charge determination.”

Receipt of certain public benefits leads to a “public charge determination” meaning that the applicant is ineligible to receive the benefit they are requesting (such as permanent residence) based on the fact that they are likely to become a public charge to the United States government.

What is a public charge?

A person is a “public charge” if they are primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.

The final rule expands the scope of this definition by making a public charge any alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.

Under the final rule announced today, immigration will now be taking into consideration the following benefits to determine whether an individual is or is likely to become a public charge to the U.S. government:

Reliance on or receipt of non-cash benefits such as:

  • Cash benefits for income maintenance
  • SNAP (food stamps)
  • Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program
  • Section 8 Project-Based Rental Assistance, and
  • certain other forms of subsidized housing.

In addition, the government will continue to take into consideration the following types of benefits:

  • Temporary Assistance for Needy Families (TANF)
  • Supplemental Security Income (SSI)
  • Medicaid

In making this determination, DHS will only consider public benefits received directly by the alien for the alien’s own benefit, or where the alien is a listed beneficiary of the public benefit.

DHS will not consider public benefits received on behalf of another. DHS also will not attribute receipt of a public benefit by one or more members of the alien’s household to the alien unless the alien is also a listed beneficiary of the public benefit.

Who is exempt from the Rule?

Certain individuals will not be penalized for past, current, or future receipt of public benefits. These individuals include:

  • U.S. Citizens, even if the U.S. citizen is related to an alien subject to the public charge ground of inadmissibility
  • Asylees
  • Refugees
  • U visa and VAWA applicants
  • Aliens who are not subject to the public charge ground of inadmissibility
  • Other vulnerable populations
  • Aliens for whom DHS has statutory discretion to waive the public charge ground of inadmissibility

In addition, special provisions have been made for certain members of the U.S. Armed Forces and their families; certain international adoptees; and receipt of Medicaid in certain contexts, especially by aliens under the age of 21, pregnant women (and women for up to 60 days after giving birth), and for certain services funded by Medicaid under the Individuals with Disabilities Education Act (IDEA) or in a school setting.

When is the final rule effective?

The final rule becomes effective October 15, 2019 (60 days from the date of the rule’s publication in the Federal Register).

Nonimmigrants

While the forward-looking requirement applies to immigrants, it does not apply to applicants for a non-immigrant visa. For these applicants, DHS will only consider whether the alien has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they wish to extend or change, up until the time of adjudication of the extension of stay or change of status request.

Important Rules for Adjustment of Status Applicants

Under this rule, beginning October 13, applicants for adjustment of status who are subject to the public charge ground of inadmissibility must file a Declaration of Self-Sufficiency (Form I-944) with their Application to Register Permanent Residence or Adjust Status (Form I-485) to demonstrate they are not likely to become a public charge. The Form I-944 only applies to adjustment applicants and not applicants for admission at a port of entry.

In addition, applicants required to submit Form I-864, Affidavit of Support must generally submit Form I-944 with the Form I-485.

Failure to submit each form, where required, may result in a rejection or a denial of the Form I-485 without a prior issuance of a Request for Evidence or Notice of Intent to Deny

T, U visa and VAWA applicants

Under this rule, an individual who is an applicant for, or is granted U nonimmigrant status is exempt from the public charge ground of inadmissibility. However, for this exemption from public charge to apply, the U nonimmigrant must hold and be in valid U nonimmigrant status at the time the Form I-485 is properly filed and throughout the pendency of an application.

In addition, VAWA self-petitioners are generally exempt from the public charge ground of inadmissibility.

T nonimmigrants seeking to adjust status under section 245(a) of the Act, 8 U.S.C. 1255(a) and section 245(l) of the Act, 8 U.S.C. 1255(l) are not subject to the public charge ground of inadmissibility for purposes of establishing eligibility for adjustment of status. However, for this exemption from public charge to apply, the T nonimmigrant must hold and be in valid T nonimmigrant status at the time the Form I-485 is properly filed and throughout the pendency of an application.

If you have any questions about this final rule please contact us.