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Rule Making Foreign Nationals Inadmissible on Public Charge Grounds, Effective October 15, 2019

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The Trump administration’s controversial rule making certain foreign nationals inadmissible to receive permanent residence on public charge grounds, will become effective beginning October 15, 2019.

First, and foremost let’s recap what this rule is about and who it will apply to:

Under immigration law, an individual who, in the opinion of DHS is likely at any time to become a public charge is (1) ineligible for a visa (2) ineligible for admission to the United States and (3) ineligible for adjustment of status (permanent residence).

This means that the rule applies to foreign nationals applying for a U.S. visa, foreign nationals seeking admission through a port of entry, and individuals applying for adjustment of status.

When an individual applies for any immigration benefit with the government, (whether a U.S. visa or green card application), the official adjudicating the petition must determine whether that individual is or will likely become a public charge. This determination is referred to as a “public charge determination.”

What makes someone a public charge in the eyes of immigration?

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.

Prior to October 15, 2019, the Government considered the following types of benefits likely to make an individual a public charge, and as a consequence, inadmissible to the United States:

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

Beginning October 15, 2019, the government will expand the list of public benefits that make a foreign national ineligible to obtain permanent residence and/or an immigrant or nonimmigrant visa to enter the United States.

These benefits include:

  • 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.

Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) will not be considered a public benefit.

The rule makes clear that a person will be considered a “public charge” if they receive one or more designated public benefits for more than 12 months in the aggregate, within any 36-month period.

Exemptions

Under this 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

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.

New Forms

USCIS is seeking to enforce the rule on October 15, 2019, despite failing to publish new forms that comply with the Presidential Proclamation.

The American Immigration Lawyers Association (AILA) has filed a lawsuit seeking to enjoin the government from discontinuing acceptance of current versions of Forms I-485, I-129, I-539, I-864, and I-864EZ, if postmarked on or after October 15, 2019, despite having failed to publish new forms on its website.

We will continue to provide our readers with more information on this lawsuit.