USCIS Publishes Final Rule on Inadmissibility on Public Charge Grounds

USCIS published an advance copy of a final rule that will prescribe how DHS will determine inadmissibility to the United States based on an individual’s likelihood of becoming a public charge. The rule will be published on August 14, 2019, and will go into effect 60 days later, on October 15, 2019. Applications and petitions that are postmarked before the effective date will not be subject to the rule.

The DHS final rule dramatically changes the standard by which the Department determines whether an applicant for adjustment of status or admission is "likely at any time to become a public charge" and therefore inadmissible to the United States (note that some noncitizens, such as asylees and refugees, are exempt from public charge determinations). Under the final rule at 8 CFR 212.21(a), USCIS removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The final rule defines a public benefit as:

  1. Any federal, state, local, or tribal cash assistance for income maintenance, including:
    1. Supplemental Security Income (SSI);
    2. Temporary Assistance for Needy Families (TANF);
    3. Federal, state, or local cash benefits programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);
  2. Supplemental Nutrition Assistance Program (SNAP);
  3. Section 8 Housing Assistance under the Housing Choice Voucher Program;
  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
  5. Medicaid, with certain exceptions; and
  6. Other forms of public housing.

The DHS final rule, which is vastly more restrictive than current policy, could result in significantly higher USCIS denial rates of adjustment of status applications subject to public charge determinations.