After the previous administration implemented drastic changes to the public charge rule in 2019, immigrants and legal service providers breathed a collective sigh of relief when the United States Citizenship and Immigration Service, or USCIS, under the Biden administration announced that they were repealing the 2019 rule and reverting back to the interpretation of the statue from the 1999 Interim Field Guidance. In February 2022, the Department of Homeland Security, or DHS, publicly announced their notice of proposed rulemaking for their own changes to the public charge rule. After taking into account the plethora of points and proposals made in the generally positive 223 comments received for the proposed rule, on Sept. 8, 2022, DHS announced its final rule that goes into effect on Dec. 23, 2022.

INA 212(a)(4), 8 U.S.C. 1182 (a)(4), otherwise known as the public charge rule, states that noncitizens are inadmissible and therefore ineligible to receive a visa, admission into the U.S., or adjustment of status if the officer finds that they are likely at any time to become a public charge. The term “public charge” was not clearly defined in the original statute, but the following list of factors to be weighed was given: noncitizen’s age, health, family status, assets, resources, financial status, and education and skills. In 1999, the Immigration and Naturalization Service, or INS, released its Interim Field Guidance on how to adjudicate the matter. It defined “public charge” as any noncitizen that was primarily dependent on the government for subsistence. This could be demonstrated through receiving public cash assistance or being institutionalized for long-term care at the government’s expense. This did not include receiving aid through noncash benefits such as SNAP or Medicaid. DHS’s proposed purpose in presenting its new final rule is to make the meaning of the statute plain and clear to any lawyer or layman while resulting in consistent, fair rulings to the benefit of all parties.

As the new rule has set out to differentiate itself from the 2019 edition as starkly as possible, DHS focused on five particular areas from the old rule that it thought to be the most harmful. First, the new rule sets out to give a clearer, more concise definition of what constitutes “public charge.” Second, the new rule no longer mandates considering past, current, and future receipt of certain supplemental public benefits (non-cash assistance programs). Third, it seeks to avoid burdensome and occasionally duplicative information collection requirements. Fourth, the new rule will avoid designating certain factors as “heavily weighted,” as the 2019 rule suggested. Finally, the new rule declines the 2019 version’s imposition of a “public benefit condition” for extension of stay and change of status, notwithstanding that the nonimmigrant population to whom this condition applied is largely ineligible for such benefits.

While the new rule will, in many ways, simply be a return to the standards of the 1999 Interim Field Guidance, not everything will be exactly the same. The new rule will attempt to clarify how DHS should approach the consideration of a noncitizen’s disability and long-term institutionalization at government expense. A new bright-line rule is highlighted, ruling against the consideration of receiving public benefits by an applicant’s dependents. For example, if a U.S. citizen child in a mixed-status household received public benefits, it is not to be weighed against the applicant. The plan is to make some changes to the current Form I-485 Adjustment of Status application to help gather some of the relevant information in considering a public charge determination. The new rule has also added numerous new definitions in an attempt to clarify the rule and its implementation for everyone, including regarding public charge bonds (such as acceptance, form, amount, and cancellation thereof). DHS also makes sure to state that for the purposes of determining public charge inadmissibility, primary dependence shall be construed as significant reliance on the government for support. Government assistance that is simply temporary or supplemental in nature does not constitute primary dependence.

Until this new rule goes into effect on Dec. 23, 2022, USCIS will continue to apply the Public charge rule consistent with the 1999 Interim Field Guidance. This means that USCIS will not consider receiving assistance from certain programs when making a public charge determination under the statute as it did under the 2019 rule. These programs include public housing, Supplemental Nutrition Assistance Program, or SNAP, and Medicaid, unless the individual had a long-term institutionalization at the Government’s expense.