DHS Publishes Proposed Rule Creating Stricter Test of Public Charge

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At a glance

• As anticipated, the Department of Homeland Security published a proposed rule permitting wider latitude in denying immigration benefits based on the likelihood of becoming a “public charge.”
• The public has been given 60 days, until December 10, 2018, to provide feedback to DHS on the proposed rule.
• If finalized in its current form, the rule would require foreign nationals submitting an application for adjustment of status, a visa or a change or extension of nonimmigrant status to establish that they are financially self-sufficient.

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The situation

Today, the Department of Homeland Security (DHS) published in the Federal Register its proposed regulation concerning the “public charge” ground of inadmissibility. The agency had released an advance copy of the draft rule to the public on September 22.  By publishing today, the agency has formally initiated the rulemaking process, starting a notice and comment period during which the public can submit feedback. The agency will accept public comments until December 10, 2018.

The proposed regulation would impose stricter standards for determining whether an applicant for a visa or permanent residence is likely to become a “public charge” – i.e., dependent on the government to meet their needs. The intent of the rule, as stated by DHS, is to ensure that applicants for admission to the United States are “self-sufficient.” DHS is also proposing to apply the public charge analysis to most nonimmigrant extension of stay and change of status requests filed with the agency.

In making a public charge determination under current guidance, the government only considers whether a foreign national is or is likely to become primarily dependent on government support by receipt of cash public benefits or long-term institutionalized care at the government’s expense. The new rule would create a broader definition of “public charge” by subjecting applicants to inadmissibility if they received or are deemed likely to receive cash or non-cash public benefits or subsidies, in addition to the existing benefits that might qualify someone a public charge. In making a public charge determination, adjudicators would apply a complex test that considers the totality of a foreign national’s circumstances, including age, health, family size, education level, skills and financial circumstances, including their income, personal assets, and credit history.

Next steps

The public may provide feedback on the proposed rule until December 10, 2018.  If your organization wishes to comment, please contact your designated Fragomen team or the firm’s Government Strategies and Compliance Group.

After the public comment period closes, DHS will review the feedback and prepare to issue a final rule in the Federal Register. Some aspects of the rule could be revised based on public feedback. There is no set timeframe for publication of a final rule, though the process typically takes several months at least. 

What the proposal means for employment-based immigrant and nonimmigrant applicants

The published regulation is a proposal only and does not have immediate impact. As noted above, it is expected to be several months until the regulation is finalized and implemented. Because most employment-based foreign nationals must have a job offer to pursue their immigration status in the United States, it is expected that they would be able to satisfy a new public charge standard on the basis of their employment, should the rule be implemented. However, all foreign nationals will want to be vigilant about the new proposed rule and any potential impact of their individual circumstances.

If finalized in its current form, the regulation would require all adjustment of status applicants and some extension of stay/change of status applicants to submit additional evidence to establish that they will not become a public charge. According to DHS, extension and change of status applicants should only initially need to submit an attestation of self-sufficiency with the possibility of a request for further evidence at the government’s discretion. If the proposal is implemented, the Department of State would revise its guidance to conform to the new regulations and would apply the broader definition of public charge at the visa application stage.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.