United States: DHS Proposes Rescission of Public Charge Regulation, With Expanded Policy to Come

Public charge is a statutory ground of inadmissibility that applies to all adjustment of status applicants and some nonimmigrants in certain circumstances. The Immigration and Nationality Act does not define “public charge” but requires a totality test of certain factors to determine if a foreign national is likely to become a public charge of the government. If deemed likely, the government can deny the immigration benefit or status sought by the foreign national.

In 2019, during the first Trump Administration, DHS issued a broad public charge regulation that expanded the possible class of individuals deemed likely to become a public charge, and required a significant amount of detailed financial information and documentation from all adjustment of status applicants (including all employment-based adjustment applicants) as well as public charge-related attestations from nonimmigrants seeking a change of status or extension of stay within the United States. The 2019 public charge rule took effect in February 2020 and was the subject of a string of judicial rulings that resulted in several about-faces with respect to DHS’s authority to enforce it. The rule was ultimately invalidated in March 2021 and replaced with a new, more limited public charge regulation by the Biden Administration; that rule took effect in December 2022 and applies only to adjustment of status applicants.

The following would be some of the key changes in DHS policy if the current public charge regulation is rescinded:

• Lower standard for public charge determination. DHS would no longer consider a foreign national likely to become a public charge only if it determines they are likely to become primarily dependent on government assistance, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. According to the DHS proposal, the new public charge standard would be whether the foreign national is likely to become “dependent on public resources to meet their needs,” removing the “primarily dependent” qualifier and introducing a looser and more subjective standard of resources an individual uses to “meet their needs.”
• Expanded factors for public charge review. Under the new policy, DHS would be directed to consider any factors and information deemed relevant to a foreign national’s likelihood of becoming a public charge. Currently, a public charge review is generally limited to the minimum statutory public charge factors (age; health; family status; assets, resources, and financial status; education and skills) and factors defined in regulations or policy (currently the foreign national’s receipt of certain public benefits, and in some cases, a Form I-864 Affidavit of Support).
• Expansion of public benefits deemed relevant in public charge analysis. Under the new DHS policy, the receipt of, application for, or approval for any public benefit would be considered a negative factor. This would include benefits that have not been part of a public charge analysis under the current rule or under the 2019 Trump-era public charge rule, such as the Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children's Health Insurance Program (CHIP), all types of Medicaid, housing benefits, benefits related to immunizations or testing for communicable diseases, and other supplemental or special-purpose benefits (including for food, medical, or housing assistance). Under the current rule, only public cash assistance for income maintenance or long-term institutionalization at the government’s expense are considered relevant for public charge purposes. In addition, it is currently not relevant if an applicant applied for or was approved for a public benefit, but did not receive the benefit; under the new policy, the fact of an application or approval could be weighed negatively even if the applicant ultimately declined or never received the public benefit.
• Public benefits of dependents considered. Under the proposed DHS policy, receipt of, or application or approval for public benefits by a foreign national’s dependent would be considered in the foreign national’s public charge analysis. The current public charge regulation only permits consideration of benefits received by the adjustment of status applicant, not those received by their dependents.

According to DHS, under its new policy, the agency would not conclude that a foreign national is likely to become a public charge simply because they received a means-tested public benefit; the agency says it would look at the circumstances surrounding the receipt of the benefit. The agency also says that with respect to any foreign national with a disability, the agency would comply with the Rehabilitation Act and ensure that the disability is not used as the sole determinant in a public charge analysis.

If the rule is finalized as proposed, USCIS says that the adjustment of status form (Form I-485) would undergo revision, but that the collection of information related to the statutory minimum factors – age; health; family status; assets, resources, and financial status; and education and skills – would not be substantively changed. Unless and until the form is revised, applicants would complete the form in the same manner they have been, and DHS would send a request for evidence if further information is deemed warranted for the public charge analysis.

After publication in the Federal Register on November 19, the public will have 30 days to comment. After the public comment period, 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, but this rule could be issued quickly after the 30-day comment period closes. If a final regulation is issued, legal challenges are possible.

Fragomen is closely following the progress of the proposal and will provide updates. If your organization wishes to comment on the proposed rule, please contact your designated Fragomen profession or the firm’s Government Strategies and Compliance Group.