On Saturday, DHS posted on its website the text of its much-anticipated proposed rule re-defining public charge.

Stemming from a 2017 Trump Administration executive order encouraging “extreme vetting” of immigrants and refugee applicants, the agency’s proposed rule would significantly alter the way USCIS officers screen for potential public charge of adjustment of status applicants or of nonimmigrants applying for an extension or change of status. Once finalized, the rule would also affect how consular officers screen for public charge for both immigrant and nonimmigrant applicants, since the Department of State traditionally joins in USCIS interpretations of grounds of inadmissibility.

In determining whether an applicant is “likely to become a public charge,” the proposed test would shift attention away from the petitioning sponsor’s income as reported on the affidavit of support and re-direct it to the adjustment applicant’s earning potential and use of certain public benefits. USCIS officers would scrutinize the intending immigrant’s current and estimated income, job history, job skills, health status, assets, and their current or past history of public benefits receipt. The proposed rule creates a complicated metric system that calculates the monetary value of the specific public benefit to determine its negative effect, and distinguishes between those benefit programs that can and cannot be assigned such a value.

But in keeping with tradition, the new public charge test would not assign negative weight to U.S. citizen children or other family members’ receipt of benefits, which had been feared. It remains to be seen, however, whether families currently receiving health care and supplemental nutritional programs will disenroll or forego future participation due to misinformation or undue caution.

The following is a summary of some of the more important changes in the proposed rule and how CLINIC plans to respond.

New Definition of Public Charge

The Immigration and Nationality Act allows USCIS and the State Department to conclude that an immigrant visa or adjustment applicant is inadmissible if he or she “is likely at any time to become a public charge.”

The proposed rule would vacate a 1999 agency memorandum, field guidance, and earlier proposed rule and replace it with one that substantially broadens the definition of public charge. The current definition, which has been in place since 1999, is that the applicant must not be “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.” 64 Fed. Reg. 28689 (May 26, 1999). 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. Id. at p. 28692.

According to the proposed rule, an applicant would be considered a public charge if he or she has received one or more of the public benefits listed below. The proposed rule expands on the list of cash benefit programs and identifies several non-cash programs that would also be considered. But it exempts receipt of public benefits by members of the U.S. armed forces serving in active duty or in any of the Ready Reserve components. It also would not consider Medicaid benefits received by foreign-born children of citizen parents who will be deriving citizenship under the Child Citizenship Act.

Receipt of Non-Cash Benefits

The following non-cash benefit programs will be considered if received by the applicant starting 60 days after the rule is finalized:

• Medicaid (except for “emergency Medicaid” and certain disability services related to education)
• Medicare Part D Low Income Subsidy
• Supplemental Nutrition Assistance Program (SNAP, formerly food stamps)
• Benefits provided for institutionalization for long-term care
• Section 8 Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance, and
• Public Housing.

Public Benefits Not Included

The proposed rule does not include receipt of the following benefit programs:

• Emergency medical assistance
• Disaster relief
• National school lunch or school breakfast programs
• Foster care and adoption
• Head Start
• Child Health Insurance Program (CHIP or SCHIP)
• Earned Income Tax Credit or Child Tax Credit
• Subsidized health insurance under the Affordable Care Act
• Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
• Housing assistance, or
• Energy benefits.

Determining Monetary Value of the Cash and Non-Cash Benefit

The USCIS will only consider the past receipt or likely receipt of benefits if their value exceeds 15 percent of the Federal Poverty Guidelines for a household of one during a 12-month period.

For 2018, the equivalent dollar value would be $1,821. Some benefit programs can be monetized easily (SSI, TANF, SNAP, and section 8 vouchers and rental assistance). But for those benefits that cannot be monetized easily (Medicaid, the Medicare Part D Low Income Subsidy, and Public Housing) the agency will look to see if the applicant received or is likely to receive such benefits for more than 12 months in the aggregate within a 36-month period. Receipt of two non-monetizable benefits in one month counts as two months. If the agency determines that the applicant is likely to receive these “non-monetizable” benefits for more than 12 months in any 36-month period in the future, he or she would be inadmissible for public charge. To add to the complexity, the proposed rule also contains a third standard, under which an applicant would be inadmissible for public charge if he or she is likely to receive a monetizable benefit below the threshold, plus one or more non-monetizable benefits for longer than nine months.

Full Considerations of Statutory Factors

The statute at INA § 212(a)(4) requires the consideration of the intending immigrant’s (1) age, (2) health, (3) family status, (4) assets, resources, and financial status, and (5) education and skills. The applicant will likely be required to identify and document employment history, education and training, current and prior income, any offers of employment, health conditions that would affect employability, enrollment in health insurance, and assets or resources. The rule, if implemented as proposed, would make it much more difficult for those who have a spotty employment history, are low income or underemployed, retired, disabled, or suffering from a medical condition that affects their employability.

Positive and Negative Factors

Any of the following will be considered a “heavily weighted negative factor” if the applicant:

• Is of employable age, not a full-time student, authorized to work, but currently unemployed
• Has no employment history or reasonable prospect of future employment
• Is currently receiving or certified to receive one or more of the designated public benefits above the threshold
• Has received one or more of the designated public benefits above the threshold within the previous 36 months
• Has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization and the applicant is uninsured and has no prospect of obtaining private health insurance
• Has been diagnosed with a medical condition that will interfere with the ability to provide for himself or herself, attend school, or work and the applicant is uninsured and has no prospect of obtaining private health insurance
• Has previously been found inadmissible or deportable based on public charge.

Either of the following will be considered a “heavily weighted positive factor” if the applicant:

• Is a healthy person of employable age with financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines, or
• Is authorized to work, is gainfully employed, and has an income of at least 250 percent of poverty.

Posting of Public Charge Bonds

The statute has allowed for the posting of a public charge bond in situations where the applicant needs to assure the USCIS that he or she will not become a public charge. But during the last 20 years, the posting of such bonds has been extremely rare. The proposed rule details the procedure for the posting and canceling such bonds. Some applicants who are initially refused based on public charge by a consular official or who are determined likely to become a public charge by the USCIS may be offered the opportunity to post a public charge bond of at least $10,000. The bond may be cancelled only upon the immigrant’s death, permanent departure, naturalization, or after five years as a permanent resident. The bond will be considered breached if the immigrant receives any of the cash (SSI, TANF, or state general assistance) or non-cash programs identified above.

New Requirements for Nonimmigrants

Nonimmigrants applying for a change of status or an extension of stay will also be subject to the new public charge standard. As part of the application and adjudication process, they will need to prove that they are not receiving nor are likely to receive public benefits.

Public Charge Ground of Deportability

At the present time, lawful permanent residents are potentially subject to the public charge ground of deportability, but such instances are almost nonexistent for a variety of reasons. The proposed rule does not change the public charge ground of deportability, so lawful permanent residents would not be newly endangered in their receipt or their family’s receipt of public benefits. Nor would they be subject to any new scrutiny in their application for naturalization. But the Department of Justice intends to conduct future rulemaking on public charge deportability.