On March 9, 2021, an Illinois district court order enjoining the implementation and enforcement of the 2019 Department of Homeland Security (DHS) public charge rule went into effect nationwide. The government dropped its appeal of that order and the appellate court lifted the stay. The government has withdrawn other appeals pending in the Ninth and Second circuits and in the Supreme Court. On March 15, 2021, it formally removed the 2019 public charge rule from the Code of Federal Regulations effective March 9. The agency is now applying the 1999 Interim Field Guidance interpreting the public charge ground of inadmissibility.

The Form I-944, Declaration of Self-Sufficiency, has been taken down from the U.S. Citizenship and Immigration Services (USCIS) website and is no longer being required with new adjustment of status applications, nor is it being applied to pending ones where the I-944 was already filed. Applicants who received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requiring the submission of an I-944 or related information with a due date on or after March 9, 2021 do not have to submit the form or requested documentation. But those applicants should respond to the RFE and indicate that the form has been withdrawn. USCIS has stated that “if USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and consistent with the 1999 Interim Field Guidance, we will send you another RFE or NOID.”

USCIS is also no longer applying the “public benefits condition” to Form I-539, Application to Extend/Change Nonimmigrant Status. It has discontinued forms I-356 and I-945 relating to public charge bonds. It will be updating Form I-485 to remove questions and information regarding those categories of applicants who needed to file an I-944. It will be updating forms I-129, I-539, I-964, and I-912. It will also be reinstating Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support.

The comparable Department of State public charge rule has been enjoined by a district court in New York since July 29, 2020, and the Form DS-5540, Public Charge Questionnaire, was discontinued as of that date. It is presumed that the government will soon withdraw its appeal of that case as well.

1999 Interim Field Guidance

In 1999, the Immigration and Naturalization Service (INS) promulgated a memorandum, field guidance, and a proposed rule in the Federal Register that clarified the meaning of the term public charge. The Department of State (DOS) issued a cable to its consulates providing similar instruction. That cumulative guidance established clear standards for interpreting this ground of inadmissibility and deportability and clarified the relationship between public charge and the receipt of certain public benefits.

According to the guidance, a non-citizen has become a public charge for inadmissibility or deportability purposes if he or she has 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 Service defined the term “public cash assistance for income maintenance” as including only three forms of benefits: (1) Supplemental Security Income (SSI) for the aged, blind, and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance; and (3) state and local cash assistance programs, usually known as general relief or general assistance. It included any federal program that supports persons who are institutionalized for long-term care, including Medicaid; these are typically provided to those in a nursing home or mental health institution. The guidance explained that “institutionalization for short periods of rehabilitation” does not fit this definition.

An adjustment of status or immigrant visa applicant’s receipt of non-cash benefits would not be taken into account when considering whether he or she is likely to become a public charge. This would include the following programs:

• Food Stamps (now called Supplemental Nutrition Assistance Program, or SNAP)
• Housing and rental assistance
• Medicaid (other than for the long-term institutionalized) and other health insurance and health services
• School lunch and school breakfast
• Nutritional programs for Women, Infants, and Children (WIC)
• State Child Health Insurance Program (SCHIP)
• Job training program
• Education assistance, including Head Start
• Low Income Home and Energy Assistance Program (LIHEAP)
• Foster care and adoption assistance
• Emergency disaster relief
• Federal education loans or grants, and
• In-kind, community-based programs, services, or assistance.

Also not considered are programs where the payments were “earned,” such as unemployment insurance, worker’s compensation, or Social Security retirement, disability, and Medicare, since they are based in part on employee contributions. Nor would government pensions, veterans’ benefits, or state and local programs that provide a health-related benefit. After passage of the Welfare Act in 1996, and even well before for some programs, immigrants without lawful immigration status have been precluded from receiving most of these non-cash benefits. After passage of the Welfare Act, lawful permanent residents (LPRs) have been precluded from accessing most federal means-tested programs for at least a five-year period.

Furthermore, receipt of benefits — including one of the three designated cash assistance programs — by household members other than the intending immigrant would not be considered by the DOS or INS/USCIS officer. For example, receipt of cash benefits by the immigrant’s parents or U.S. citizen children would not be considered, nor would those received by the sponsor completing an affidavit of support. The only caveat is when the family is reliant on the public benefit as its sole means of support. In those situations, the intending immigrant may be considered to have received the benefit as well.

Five Statutory Factors

The 1999 INS memorandum, field guidance, and proposed rule also point out that the determination of the likelihood of becoming a public charge is a prospective test and should include consideration of all of the factors set forth in the statute, as well as any prior administrative decisions and regulations. These factors make up what is called the “totality of the circumstances test,” and are explained more fully below. Any officer who intends to deny an application based on public charge must weigh the five statutory factors and “specifically articulate the reasons for the officer’s determination.” Past or even current receipt of one of the three cash assistance programs does not automatically mean that the applicant is likely to become a public charge in the future. Rather, it is just one of the factors taken into consideration when making the forward-looking determination. When the applicant received the benefits and for how long a period will determine how much weight these factors should be given. Past receipt by the intending immigrant of non-cash benefits (other than institutionalization for long-term care), however, should not be considered.

The USCIS and DOS apply a two-part test, which first looks at the Form I-864 sponsor’s likelihood of fulfilling his or her financial obligations, after which it looks at the intending immigrant’s likelihood of becoming a public charge. The USCIS states that “in determining whether an alien meets the definition for public charge inadmissibility…no single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.”

The 1996 immigration law codified the totality of the circumstances test that had traditionally been applied to immigrant visa and adjustment applicants by INS and DOS officials. According to the statute, those officials must take into consideration the following five factors related to the intending immigrant:

• Age
• Health
• Family status
• Assets, resources, and financial status, and
• Education and skills.

With respect to age, consular officials are instructed to consider any skills that applicants over the age of 16 possess that would make them employable in the United States. They should also consider any health-related ailment that would preclude or hinder the person from working. If the person is married and/or has children, the official should weigh the number of dependents he or she is responsible for supporting. With respect to work experience, the official should examine “the applicant’s skills, length of employment, and frequency of job changes” to determine whether the applicant will become self-sufficient shortly after entering the United States.

For the last half century, the general rule in determining public charge has been that intending immigrants who are able-bodied and employable will not be found to be inadmissible under this ground. The seminal case in this area held that “a healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where he has friends or relatives in the United States who have indicated their ability and willingness to come to his assistance in case of emergency.” Matter of Martinez-Lopez, 10 I&N 409, 421–22 (AG 1964). In contrast, however, an elderly person who has been receiving SSI may have difficulty satisfying the test. Matter of Vindman, 16 I&N Dec. 131 (Reg’l Comm’r 1977); see also Matter of Harutunian, 14 I&N Dec. 583 (Reg’l Comm’r 1974).

The last reported case discussing public charge, decided almost 30 years ago, analyzed the factors and applied them generously to a legalization applicant. In that case, the applicant was a 33-year-old mother of three who had little work experience and whose family had received welfare payments for four years. Nevertheless, the Commissioner found that in light of her age, her ability to earn a living, and the reason for her past unemployment, which was to care for her pre-school-age children, she was not likely to become a public charge. Matter of A–, 19 I&N Dec. 867, 870 (Comm’r 1988).

The same section of the 1996 law that codified the five factors that must be considered also mandated the filing of the legally-enforceable affidavit of support. Since implementation of that requirement — up until the DHS public charge rule was implemented on Feb. 24, 2020 — the focus had shifted away from the intending immigrant and onto the sponsor. The sponsor had to demonstrate the ability to maintain the intending immigrant at a certain financial level through the submission of Form I-864, last year’s income tax return, and possibly other supporting documentation. The truth is that most USCIS officers did not consider the five factors indicated above, or even the intending immigrant’s likelihood of becoming a public charge, if the sponsor had submitted an affidavit of support that met the minimum requirements. It remains to be seen, moving forward, whether the USCIS will return to this practice of focusing almost exclusively on the sponsor’s affidavit of support and ignoring the intending immigrant’s self-sufficiency.

Public Charge and Consular Processing

DOS published its own complementary public charge rule and started implementing it with Form DS-5540 beginning on Feb. 24, 2020. It applied the new standard to immigrant visa applicants beginning on that date, regardless of when the immigrant visa application had been filed. But for the last year, a combination of the COVID-19 pandemic, consular office closings and a Trump administration proclamation restricting family-based visas severely reduced the number of immigrant visas that were issued.

On July 29, 2020, a district court in New York enjoined the agency from implementing and enforcing its new public charge rule and form, as well as changes the agency had made to the Foreign Affairs Manual (FAM) in 2018. Unfortunately, the agency has not reinstated the original language in the FAM prior to the 2018 changes, which had provided greater clarity on this issue.

The pre-2018 FAM indicated that submission of Form I-864 “should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the ‘totality of the circumstances’ analysis.” In other words, the submission of the affidavit of support should obviate the need to weigh the five factors. Only in “an unusual case” or in situations where the applicant is exempted from submitting an affidavit of support (e.g., because he or she is a widow(er), has earned 40 qualifying quarters, or will derive citizenship) should the five factors be considered.

When examining the visa applicant’s financial resources, another section of the FAM stated:

An alien who must have Form I-864, will generally not need to have extensive personal resources available unless considerations of health, age, skills, etc. suggest that the likelihood of his or her ever becoming self-supporting is marginal at best. In such cases, the degree of support that the affiant will be able and likely to provide becomes more important than in the average case.

The FAM also stated that the consular officer must not base a determination that the applicant is likely to become a public charge on “what if” type considerations. The determination must be based on a “reasonable future projection of the alien’s present circumstances...which make it not merely possible, but likely, that the applicant will become a public charge.”

For example, it advised consular agents to be “flexible” and to predicate public charge decisions on existing, specific facts. Applicants with income or funds that make them at or above the poverty income guidelines should be presumed admissible under INA § 212(a)(4); with those whose incomes are below the guidelines, there arises a rebuttable presumption of inadmissibility.

Even in cases where the applicant has submitted an affidavit of support that satisfies the financial requirements, the DOS officers still have the discretionary power to require more proof that the sponsor has the financial ability to support the intending immigrant. They may exercise that in cases where there is a “significant public charge concern.” But that was limited to situations where the intending immigrant had advanced age, serious health problems, or mental or physical disabilities. Physical disabilities and handicaps or mental disorders will likely provide a basis for closer scrutiny by consular officials. Courts in the distant past have upheld findings of inadmissibility for public charge due to deafness, heart disease, blindness, and senility.

The current language on public charge at 9 FAM 302.8-1(A) and (B), amended on 10/1/2020, is much shorter and provides much less detailed instruction. It does contain one important provision, which mandates a referral to the Visa Office for an advisory opinion whenever the consular official believes the applicant is likely to become a public charge. Those refusals should be based on INA § 212(g) [inadequate documentation] rather than INA § 212(a)(4) [inadmissible based on public charge]. This is significant for two reasons: first, it requires consular officers to explain and justify the basis for their belief that the applicant is inadmissible for public charge and receive confirmation from the Visa Office; and second, a refusal under 221(g) does not trigger any revocation of an approved provisional waiver. It remains to be seen how various consular offices, once they resume full operation, will apply the public charge rule to immigrant visa applications.