DHS Proposes Stricter Test of “Public Charge” for Applicants for Permanent Residence, Visas or Changes/Extensions of Status

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At a glance

• If the proposal is implemented, immigration officials could deny an application for a visa, permanent residence or a change or extension of status if the foreign applicant has accepted certain public benefits or is determined to be likely to need such benefits in the future.
• The rule is a proposal only and will soon be published for public feedback.  It will not take effect until approved in final form, a process that typically takes several months or more.

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The situation

The Department of Homeland Security (DHS) has released a proposed regulation that 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.”

U.S. immigration law has long permitted the government to find a foreign national inadmissible and deny immigration benefits if it determines the foreign national is likely to become a public charge at any time in the future.  In making that determination under current law, 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.  Because most foreign nationals are restricted from receiving such benefits and must have a job offer or financial sponsor to pursue permanent residence, public charge denials have been rare, particularly for employer-sponsored foreign nationals.

How the proposed rule would affect foreign nationals

The proposed regulation would create a broad new definition of public charge that could subject most applicants for a visa, permanent residence or a change or extension of nonimmigrant status to inadmissibility on public charge grounds if they have received any of a wide range of cash or non-cash public benefits or subsidies.  However, only public benefits received after the rule takes effect would be counted.  Benefits received by a spouse or child would not be counted against the applicant.

Public benefits designated as relevant for a public charge determination under the proposal would include cash and non-cash benefits, including cash assistance for income maintenance, Medicaid (with limited exceptions for “emergency medical conditions” and some disability services related to education and benefits received by certain foreign-born children), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), and certain housing benefits.  An early draft of the proposal would have included health care insurance subsidies under the Affordable Care Act, but that provision has been omitted.  DHS is seeking comments on whether to include the Children’s Health Insurance Program on the list of relevant benefits.

Even if an applicant has not used public benefits, an immigration officer would have wide discretion to deny an application on public charge grounds if the officer believes that the applicant is likely to need government benefits at any time in the future.  In making this determination, adjudicators would apply a complex test that considers an applicant’s age, health, family size, education level, skills and financial circumstances, including their income, personal assets, and credit history.

Applicants found to be a potential public charge would need to post a bond of $10,000 or more in order to have their application approved.

In general, most lawful permanent residents (green card holders) are not subject to the public charge ground of inadmissibility, including permanent residents who apply for naturalization to U.S. citizenship.

What’s next for the proposal

The public charge rule has not yet begun the formal regulatory process and will not take effect until  that process is completed, which typically takes several months or more.  The proposed rule is expected to be published in the Federal Register in the coming weeks.  Once it is published, DHS will accept feedback from the public for 60 days.  The proposal is expected to receive a very large number of comments.  After the comment period closes, DHS will review the feedback and prepare a final version of the regulation, which must undergo further review before it is published and implemented.

If implemented as proposed, the regulation would require most applicants for a green card, visa or change or extension of nonimmigrant status to complete additional forms and submit evidence concerning their financial circumstances, and would subject applications to a lengthier government review.

Fragomen is closely following the proposal and will provide updates as developments occur.

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