The Department of Homeland Security (DHS) recently announced the issuance of a final rule which expands the ways in which foreign nationals seeking to enter the United States can be found inadmissible based on the likelihood of becoming a “public charge.” The rule takes effect on October 15, 2019. 

Background

Section 212(a)(4) of the Immigration and Nationality Act (INA) provides the authority for finding a foreign national inadmissible based on a likelihood of becoming a public charge.

Prior guidance issued in March 1999 defined “public charge” as “an alien who has become or 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.’”

Summary of New Regulation

This regulation expands the list of public benefits that could lead to a finding of inadmissibility to include: cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), Medicaid (with limited exceptions), and certain housing programs. An individual who receives one or more of these public benefits for an aggregate period of 12 months within a 36 month period would be inadmissible to the United States. In addition, individuals in the United States in valid nonimmigrant status may become ineligible for a change or extension of status from within the U.S. if they exceed these thresholds.

Finally, the rule creates a number of “negative factors” that could lead to a finding that a person is likely to become a public charge in the future, based on criteria such as age and employment history. This could potentially lead to a denial of an Adjustment of Status application even if the applicant meets the income requirements based on federal poverty guidelines.

The rule does exempt humanitarian-based immigration programs including refugees and asylees; and certain immigrant categories such as Special Immigrant Juveniles and victims of domestic violence under the Violence Against Women Act.