Employment Law Report

New DHS “Public Charge” Rule Set to Take Effect This Month

By Glen Krebs.  Roger Morris, who recently passed the Kentucky Bar Exam, contributed to this article.

Last month, the Department of Homeland Security (“DHS”) published a final rule set to go into effect October 15, 2019 governing the Immigration and Nationality Act’s provisions on public charge grounds of inadmissibility. The final rule redefines “public charge” and is vastly more restrictive than current policy. Many expect the rule change to result in significantly higher denial rates of adjustment of status applications.

“Public charge” has been a part of American immigration law for over a century. When an individual is seeking to adjust his or her status to that of a lawful permanent resident or seeking admission to the United States, the United States Customs and Immigration Services (“USCIS”) conducts an evaluation based on the likelihood of the individual becoming a “public charge.” A “public charge,” under the prior definition, is an individual who is likely to become “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 the government’s expense.”[1] When determining whether an alien meets this definition, the USCIS considers a number of factors such as age, health, family, assets, resources, education, and skills. Under existing law, one consideration is the use of certain benefits such as Supplemental Security Income (“SSI”), cash assistance from the Temporary Assistance for Needy Families (“TANF”) program, and state and local cash assistance programs. Acceptance of those benefits could make a non-citizen inadmissible as a public charge if all other criteria were met, but mere receipt of such benefits would not automatically result in inadmissibility or ineligibility to adjust status.

The new DHS final rule dramatically alters this standard. First, the new rule redefines the meaning of “public charge.” Instead of assessing whether an applicant is likely to become primarily dependent on the government for income support, the new rule defines a “public charge” as a person who receives any number of public benefits for more than an aggregate of 12-months over any 36-month time period. One factor used in the evaluation is whether the prior receipt of public benefits for 12-months over the 36-month period preceded an application for admission or adjustment of status. Each benefit an applicant uses over the prior three year period counts toward the 12-month calculation so, for instance, if an applicant receives two different benefits in one month, that counts as two-months’ use of benefits. Additionally, the new rule expands the list of public programs that USCIS adjudicators may consider when making a public charge evaluation. Now, federal non-cash assistance programs like Supplemental Nutrition Assistance Program (“SNAP”), Section 8 Housing Assistance, Section 8 Project-Based Rental Assistance, Medicaid, and public housing under section 9 of the US Housing Act of 1937 are all applicable public benefits. Usage of any of these programs would count towards an applicant’s 12-month calculation.

It is important to note that under the new system, the “public charge” determination is still factor-based, which means that the prior receipt of public benefits is not outcome determinant. There are still other factors under consideration such as financial status, size of family, age, education, skills and employment, among others. The rule, however, does create “heavily weighted negative factors” and a couple of “heavily weighted positive factors.” The receipt of 12-months of public benefits over a three year period is a heavily weighted negative factor. As immigration officials have yet to actually apply this factor test, it is difficult to forecast how pivotal “heavily weighted” factors are in a “public charge” determination.

This factor test leaves substantial discretion to USCIS adjudicators and could produce inconsistent and unpredictable decision-making. The likely results are significantly higher USCIS denial rates of adjustment of status applications because of “public charge” determinations and a more timely and burdensome application process for both applicants and the USCIS. The rule requires that adjustment applicants who are subject to “public charge” determinations submit Form I-944, which is a lengthy Declaration of Self-Sufficiency, with the adjustment applications. The USCIS will have to review hundreds of thousands of these new forms each year, only slowing the already delayed case processing.

While the rule is set to go into effect October 15th it may be some time before we learn of the rule’s true impact. Nearly twenty states have taken action to prevent implementation, with some states filing lawsuits alleging that the new rule is an “arbitrary and capricious” use of power in violation of the Administrative Procedure Act (“APA”).

[1] See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

Glen M. Krebs
Glen Krebs is a member of the Firm’s Labor & Employment Service Team.  He concentrates his practice in international and immigration law. Read More