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Department of Homeland Security to Propose New Public Charge Rule

February 28, 2022
Ana Valenzuela

On February 17, 2022, the Department of Homeland Security (DHS) announced that it plans to issue a new proposed rule on how it plans apply the public charge ground of inadmissibly.  Practitioners and applicants alike will recall that DHS issued a different public charge rule in August of 2019, which is no longer in effect.  The proposed rule, if finalized, is expected to implement a different policy than the August 2019 Final Rule.

DHS believes that the proposed rule would “effectuate a more faithful interpretation of the statutory concept of ‘likely at any time to become a public charge’; avoid unnecessary burdens on applicants, adjudicators, and benefits-granting agencies; and mitigate the possibility of widespread ‘chilling effects’ with respect to individuals disenrolling or declining to enroll themselves or family members in public benefits programs for which they are eligible, especially by individuals who are not subject to the public charge ground of inadmissibility.”

Noncitizens may be inadmissible to the United States due to variety of reasons.  If a noncitizen is inadmissible for certain acts, conditions, or conduct, they may be ineligible to be admitted to the United States and ineligible to receive a visa or other immigration benefits, including obtaining a green card.  Section 212(a)(4) of the Immigration and Nationality Act, provides that an applicant for a visa, admission, or adjustment of status is inadmissible if they are likely at any time to become a public charge.  By statute, some categories of noncitizens are exempt from the public charge inadmissibility ground.  In other instances, certain individuals may be eligible for a waiver.

Prior to the August 2019 Final Rule, DHS followed the 1999 guidance issued by the former Immigration and Naturalization Service (INS).  The INS defined public charge in the 1999 guidance to mean, for purposes of admission and adjustment of status, “an alien who is likely to become… primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”   The 2019 Final Rule redefined public charge to mean, “an alien who receive one or more public benefits… for more than 12 months in the aggregate within any 36-month period.”

Under the proposed rule, DHS proposes to define “likely at any time to become a public charge” as someone who will become “primarily dependent” on the government for subsistence by receiving public cash assistance for income maintenance or long-term institutionalization at government expense.   DHS proposes that public cash assistance for income maintenance would mean:

  • Supplemental Cash Income (SSI);
  • Cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF);
  • State, tribal, territorial, or local cash benefits programs for income maintenance; and
  • Long-term institutionalization at government expense.

As previously mentioned, Congress specifically exempts certain groups from the public charge inadmissibility ground, including asylees, refugees, individuals applying for adjustment under the Cuban Adjustment Act, special immigrant juveniles, individuals who entered the United States prior to January 1, 1972 (and who meet other conditions), individuals applying for Temporary Protected Status, T and U nonimmigrant applicants, and self-petitioners under the Violence Against women Act (VAWA), to name a few.

If you wish to discuss how these proposed changes could impact your immigration case, do not hesitate to contact our office at (312) 427-6163 or www.mmhpc.com.

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