The Final Rule Expanding the Definition of "Public Charge" and its Impact on Legal Immigration

Today, the U.S. Department of Homeland Security (DHS) published a final rule on inadmissibility on public charge grounds, dramatically expanding the definition of "public charge" and incorporating a wider range of public benefit programs creating public charge concerns. The new rule also provides a much broader "totality of the circumstances" framework that lays out positive and negative factors to be considered in determining whether an individual is likely to use public benefits at any point in the future, and thus become a public charge.

The new rule, scheduled to go into effect in 60 days (October 15, 2019), will transform the way the DHS determines whether an individual applying for admission or adjustment of status is admissible to the United States. Effectively, the rule subjects foreign nationals to even higher scrutiny under a more discretionary and unpredictable system, whereby DHS adjudicators may determine the individual's eligibility based on their demographic and socioeconomic characteristics. More than that, DHS's public charge rule is slated to have a disproportionate impact on working class immigrants and families seeking to obtain lawful permanent residence.

The rule inhibits legal immigration and represents a departure from the longstanding immigration system that was built on a foundation of family reunification.

"Public Charge" Redefined

Prior to the publication of the final rule, the term "likely to become a public charge" had never been defined by statute. Since 1999, the public charge determination has been dictated primarily by the 1999 Interim Field Guidance, which defined "public charge" more narrowly to apply to individuals who were "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." Primary dependence referred to reliance on cash-aid for income support or long-term care paid for by the government. As such, an immigrant's reliance on or receipt of non-cash benefits were not considered by DHS in determining whether an immigrant could be deemed likely to become a public charge. The rule released today incorporates consideration of such benefits and significantly broadens the scope of the factors assessed, as well as the discretion afforded to DHS adjudicators.

Specifically, the new regulation redefines the term "public charge" to mean "an alien who receives one or more designated public benefits 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 rule also defines the term "public benefit" to include cash benefits for or income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing."

Totality of the Circumstances Test

The rule lays out a framework under which minimum factors are considered in making a public charge determination. Under the rule, DHS adjudicators are directed to use an expansive "totality of the circumstances" test which requires the immigration officer to make a forward-looking determination as to whether the applicant is likely, at any time in the future, to need public assistance by evaluating "all factors bearing on the intending immigrant's ability or potential ability to be self-sufficient."

DHS adjudicators are directed to weigh positive and negative factors, such as an immigrant's age, health, household size, income, assets, credit score, financial liabilities, English language proficiency, education, skill level, and private insurance coverage in determining whether the applicant is likely, at some time in the future, to need public assistance. How immigration officers will weigh these factors is unclear. In effect, the adjudicating officer is tasked with predicting whether an individual's demographic and socioeconomic profile indicates they will need public assistance in the future based on a consideration of these characteristics. This approach increases the risk of inconsistent and arbitrary denials based on sheer conjecture.

In light of the new rule and the breadth of discretion it affords to adjudicating officers, it is clear that the public charge determination will be a critical issue in all adjustment of status applications moving forward. This new rule, if implemented, will primarily impact low-income individuals seeking lawful permanent resident status through family-based petitions as well as working class immigrants. Those seeking to adjust status should consult with an immigration attorney to understand how the new public charge rule may impact their case.