March 17, 2023
The public charge ground of inadmissibility can be found at INA§212(a)(4).
The Department of Homeland Security (DHS) published its final rule governing the public charge ground of inadmissibility on August 14, 2019, which will go into effect on October 15, 2019. The public charge ground of inadmissibility applies to persons applying to adjust their status to that of a lawful permanent resident (LPR) and is taken into consideration for persons applying to extend or change their nonimmigrant status.

Under the old rule, an applicant would be deemed to be a public charge if he or she primarily depended on public benefits. The new rule changes that standard to say that an applicant would be a public charge if he or she received a specified public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The new public charge rule also makes changes to what public assistance would be considered a public benefit. The following assistance programs fall under the definition of a public benefit as outlined in the new 8 C.F.R. § 212.21(b):

1.Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
Supplemental Security Income (SSI);
Temporary Assistance for Needy Families (TANF);
Federal, State or local cash benefit programs for income maintenance; and

2.Supplemental Nutrition Assistance Program (SNAP) (previously known as food stamps);
3.Section 8 Housing Assistance under the Housing Choice Voucher Program;
4.Section 8 Project-Based Rental Assistance;
5.Medicaid, except for:
Benefits received for an emergency medical condition;
Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;
Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).

6.Public Housing.

An adjudicator under the new rule must evaluate whether it is “more likely than not at any time in the future” that the applicant would become a public charge by using a totality of the circumstances test. Previously, an Affidavit of Support from a sponsor with the required income would be sufficient to overcome the public charge ground of inadmissibility. The new rule moves the focus to the factors, which include the applicant’s age, health, family status, assets/resources/financial status, and education/skills.

First, addressing age, an applicant who is under 18 or older than he minimum early retirement age will have to demonstrate why their age will not have an impact on their ability to work.

Second, an applicant with a health condition will have to demonstrate how that health condition impacts their ability to work, go to school, or care for themselves.

Third, the new rule changes the definition of household to include dependents and persons providing the applicant with more than 50 percent of their support.

Fourth, an adjudicator will evaluate the applicant’s assets, resources, and financial status. Using the new household definition, an applicant will need to show that their household income is more than 125 percent of the Federal Poverty Guidelines. Additionally, “If the applicant is the spouse or child over age 18 of a U.S. citizen, assets must equal three times the income shortfall; for most others, the value of assets must equal five times the difference between required household income and actual household income.”An adjudicator will also take into consideration a household’s past receipt of public benefits, any civil liabilities, past applications for fee waivers, as well as credit history and credit score.

The final statutory factor is an application’s education and skills. Under this prong, an adjudicator will evaluate the applicant’s education and skills to obtain employment sufficient to avoid becoming a public charge. Under this prong, an applicant’s education level or occupational skills, prior 3 year’s employment history, English language proficiency, and status as a primary caregiver will be taken into consideration.

The new rule also creates heavily weighted positive and negative factors to be considered in determining whether an applicant would become a public charge.

The heavily weighted negative factors are as follows:
Is not a full-time student and is authorized to work, but currently unemployed.
Is currently receiving, or certified or approved to receive one or more of the designated public benefits above the threshold.
Has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or will interfere with the ability to work, attend school or care for himself or herself, and the applicant is uninsured and has no prospect of obtaining private health insurance or financial resources to pay for reasonably foreseeable medical costs.
Has previously been found inadmissible or deportable based on public charge.

The heavily weighted positive factors are as follows:

The applicant’s household has income of at least 250 percent of the FPG for the household size.
The applicant is authorized to work, is gainfully employed, and has an income of at least 250 percent of the FPG.
The applicant has private health insurance, not including insurance for which the applicant received subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act.

If an applicant is found to be a public charge, the applicant may be able to post a bond.
It will be a discretionary decision whether an applicant will be allowed to submit a bond, and the minimum amount will be $8,100 for a bond. If a bond is posted, it will only be cancelled if the applicant naturalizes, permanently departs the United States, dies, has been an LPR for 5 years, or changes status to an immigration status not subject to the public charge ground of inadmissibility.

This summary is not intended to be a legal consultation and is intended to be a general description. A legal consultation is necessary before any action is taken. Please call Birg Law (847) 579-9989.