The New DHS Public Charge Rule and its effects on the employment-based immigrants
The Department of Homeland Security and the U.S. Citizenship and Immigration Services USCIS announced on December 9, 2022, the new version of Form I-485 (Application to Register Permanent Residence or Adjust Status). This form is used by individuals who are seeking to change their immigration status from a nonimmigrant visa to a green card, also known as a lawful permanent residence.
The form was revised in connection with a new regulation addressing the public charge ground of inadmissibility. The public charge rule is a provision in immigration law that considers the probability of an applicant becoming dependent on the government for financial support when evaluating their eligibility for certain immigration benefits. The new regulation would take effect on December 23, 2022, and would impact the eligibility of individuals for permanent residency.
The Biden administration’s public charge rule went into effect on December 23, 2022. It will impact the eligibility of individuals for permanent residency, returning to the flawed definition of “public charge” used during the Clinton era. The regulation, referred to as the “2022 public charge rule”, formalizes USCIS’s history of rarely enforcing the public charge inadmissibility law. However, this new rule appears to be a bold attempt to disregard congressional mandates and increase welfare usage among noncitizens in the U.S. This is a significant change from the policies established under the Trump administration’s 2019 public charge rule.
Before we get into a detailed analysis of the New Public Charge Rule, let’s briefly discuss what it is Public Charge and the history behind this rule.
The Public Charge Rule definition and history
Public charge is a term used in U.S. immigration law to describe a person who is considered primarily dependent on the government for financial support and therefore deemed likely to become a public burden.
The U.S. Department of Homeland Security uses this determination to decide whether an individual seeking admission to the U.S. or a change of immigration status is admissible based on factors such as income, employment, health, and education. The definition of public charge has been the subject of changes and controversy in recent years.
The idea of “public charge” has been a part of U.S. immigration law since 1882. Still, it wasn’t officially defined until 1999 when the former Immigration and Naturalization Service (INS), the predecessor of the Department of Homeland Security (DHS), issued the “1999 Interim Field Guidance.”
The Field Guidance on Deportability and Inadmissibility on Public Charge Grounds established that to become a public charge. The applicant must depend on the government subsistence by either (a) receiving public assistance for their daily living expenses or (b) being housed in a government-funded institution for long-term care.
Public benefits that may be taken into account for the public charge determination
Under this guideline, specific government programs are considered on whether the applicant will likely become primarily dependent on the government for financial support. These programs may include cash assistance programs, such as Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI), as well as long-term institutionalization in a government-funded nursing home or similar facility.
It’s important to note that participation in these programs is not an automatically positive factor to result in public charge. They serve as a guideline, and each case is considered on its merit.
Public benefits that are not taken into consideration for Public Charge determination
These may include cash assistance programs, institutionalization for long-term care, and certain forms of government-funded health insurance. On the other hand, benefits such as emergency medical treatment, public health services, children’s health insurance programs, nutrition programs, housing assistance, energy assistance, disaster relief, public education and job training programs, and benefits received by the individual’s spouse or children who are U.S. citizens or lawful permanent residents, are not typically considered in the public charge determination.
These programs are known as:
- Medicaid benefits and emergency medical treatment and other public health services, such as vaccines and treatment for infectious diseases
- Children’s health insurance programs, such as CHIP
- Nutrition programs, such as the Supplemental Nutrition Assistance Program (SNAP) and Women, Infants, and Children (WIC)
- Public Housing assistance,
- Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
- Disaster relief
- Public education and job training programs
- Benefits received by the individual’s spouse or children who are U.S. citizens or lawful permanent residents
It’s important to note that while these benefits may not be considered in the public charge determination. They may still be considered in other aspects of the immigration process, such as determining an individual’s eligibility for a particular visa application.
The New Public Charge Rule and its goal to restore public trust in the U.S. immigration system
The new Public Charge Rule goal is to rebuild confidence in the legal immigration system by removing excessive and unjustified administrative barriers to accessing government benefits and ensuring fair and efficient processing. Additionally, it aims to minimize confusion and fear among immigrants and their families, including children, so that they can receive necessary government services.
According to this regulation, DHS will assess if a noncitizen is likely to become a public charge, either through the receipt of public cash assistance or being institutionalized at government expense. The previous rule on this issue, the Inadmissibility on Public Charge Grounds Final Rule, issued on August 14, 2019, is no longer valid.
According to this framework, immigration officers are only allowed to consider prior or current receipt of Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), state or local cash benefits, or long-term institutionalization at government expense. The rule also excludes consideration of the Earned Income Tax Credit and Child Tax Credit programs. It prohibits officers from considering benefits received by an alien’s family members, including children.
Any other form of welfare usage will not be considered in a public charges analysis, such as medical care, housing assistance, or benefits provided to family members. As a result, the new rule significantly increases the threshold for proper welfare usage for public charge inadmissibility.
The 2022 public charge rule also removed much of the clarifying language in the 2019 rule regulation, which guided how to evaluate the mandatory factors of age, health, family status, assets, resources, financial status, and education and skills.
The regulation also does not require officers to weigh any factor more heavily than another, despite evidence that certain factors, such as education and income, are the best predictors of becoming a public charge. Additionally, the 2022 rule repealed the requirement for officers to assess the likelihood that the sponsor will provide financial support if the noncitizen becomes a public charge.
Applicability of the new rule
The updated public charge regulation primarily targets those seeking to enter the United States or change their status to that of a lawful permanent resident (LPR). It affects noncitizens who are either applying for admission or are already present in the U.S., such as green card, temporary visa holders, or family members of U.S. citizens.
This regulation does not apply to U.S. citizens, refugees, asylees, or certain noncitizens under special categories, including special immigrant juveniles, survivors of abuse with T or U visa status, and self-petitioners under the Violence Against Women Act (VAWA).
The New Public Charge Rule impact on employment-based cases
Most green card applicants, including those based on family ties to a U.S. citizen or permanent resident or through employment sponsorship by a U.S. employer, were subject to the public charge rule.
The changes for Green Card applicants
The public charge rule applies to most applicants for a green card. This includes those seeking a green card based on their relationship with a U.S. citizen or legal permanent resident and those sponsored by a U.S. employer.
In the past, the review for employment-based green card petitions was limited to the existence of a job offer at a prevailing wage and the employer’s ability to pay the salary. However, a more extensive review of the individual immigrant’s finances is now required for cases filed after February 24, 2020.
The applicability on the Green Card holders seeking naturalization
The changes to the definition of “public charge” could potentially lead to the deportation of some immigrants who possess green cards. According to Congress, an individual with a green card can only be deported based on public charge within the first 5 years of obtaining their green card if the circumstances existed before acquiring it.
However, due to legal restrictions and ineligibility for welfare for recent green card holders, very few green card holders have been deported based on public charge.
Expanding the definition of “public charge” could lead to uncertainty for millions of immigrants. Although the new meaning does not affect current green card holders, the Department of Justice announced its intention to conduct a parallel rulemaking on the public charge deportability based on public charge and aims to maintain consistent standards where appropriate.
The recent public charge rule offers a reasonable solution to welcome immigrants to the U.S. and safeguard the interests of U.S. taxpayers. Unlike the previous administration’s complicated and heavy-handed public charge rule of 2019, the new rule streamlines the process, reduces confusion, and eliminates the need for multiple lawsuits.
What is the Public Charge Rule?A rule that describes a person who is considered primarily dependent on the government for financial support and therefore deemed likely to become a public burden.
What changes were made to the new I-485 regarding the Public Charge rule?The latest 12/23/22 version of the I-485 form has added several questions in Part 8 to determine if an applicant for adjustment of status is ineligible for entry into the United States based on the public charge rule. The revised Form I-485 includes additional questions covering around two pages on the applicant’s household information, income, liabilities, and education, including certifications, licenses, work experience, and more.
What is the importance of the 1999 Interim Field Guidance?It provided guidance to immigration officers on how to interpret and implement the public charge ground of inadmissibility. In other words, it establishes public charge standards. It clarified the definition of “public charge” and the factors that immigration officers should consider when determining a public charge. The guidance helped to ensure consistent and fair enforcement of the public charge rule among immigration officers. It served as a reference for immigration applicants in understanding the criteria used to evaluate their eligibility for immigration benefits.
Which public benefits can consider that the applicant is a Public Charge?Public benefits are government benefits like food, cash, housing, and medical assistance for people with low or no income. All of these benefits, except for emergency medical assistance, disaster relief, and some public health benefits, are considered when making a public charge determination. Examples include SNAP (food stamps), Medicaid, housing assistance, and Temporary Assistance for Needy Families (TANF) .
Who will be affected by the New Public Charge Rule?The 2022 rule primarily targets those seeking to enter the United States or change their status to that of a lawful permanent resident (LPR). It affects noncitizens who are either applying for admission or are already present in the US, such as green card, temporary visa holders, or family members of US citizens.
What is the impact of the New Public Charge Rule on employment-based visa applicants?The new public charge rule expands the scrutiny of nonimmigrant visa applicants, including those for H-1B, J-1, F-1, TN, and L-1 visas. It increases the list of government programs that can be used to reject a foreign national’s application. When filing for a change or extension of status in the US, employers must complete questions regarding the individual’s use of public benefits on the I-129 form. Still, this information is not required if the nonimmigrant visa is applied for at a U.S. Consulate. The Consular Officer may require additional financial information and may ask the visa applicant to complete Form DS-5540 to decide. Most nonimmigrant visa applicants are not eligible for the benefits targeted by the DHS rule, with exceptions for refugees, asylumes, and victims of domestic violence.
What aspects are considered when evaluating whether an individual is likely to become a public charge?The DHS applied new public charge standards to various nonimmigrant visas, including the H-1B visa for skilled workers, for those who needed to extend or change their visa status. These applicants did not have to take the Form I-944 test or the future-looking test but were still required to prove that they didn’t receive public benefits for more than 12 months in a 36-month period. Notably, most nonimmigrant visa applicants are not eligible for the benefits targeted by the DHS public charge rule. Exceptions include refugees, asylees, domestic violence victims, and other groups exempt from the public charge test by Congress.
What’s the impact of the new Public Charge rule on Green Card applicants?Applicants for Adjustment of Status in the US must fill out Form I-944, which asks for information on assets and liabilities, tax transcripts, credit reports, health insurance, and past use of public benefits. Consular Processing applicants must submit Form DS-5540 per family, similar to the I-944, and ask for similar information, including assets and liabilities, tax transcripts, health insurance, and use of public benefits.