The final rule amends 8 CFR Parts 103, 212, 213, and 245 and will apply to lawful permanent resident applications postmarked (or electronically submitted) on or after this date. It does not apply to nonimmigrants.
According to INA §212(a)(4)(A), a noncitizen “likely at any time to become a public charge is inadmissible.” Under the final rule, “likely at any time to become a public charge” means likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. “Primarily dependent” connotes significant reliance on the government for support, and means something more than dependence that is merely transient or supplementary.”
Consistent with the 1999 Interim Field Guidance, the DHS must “at minimum” consider the following statutory factors: the noncitizen’s: age; health; family status; assets, resources, and financial status; and education and skills.
1. AgeThe final rule does not give definition of age.
2. HealthThe final rule states that adjudicators will defer to a medical exam from a civil surgeon or panel physician (when required) absent evidence that the report is incomplete. The medical exam is used to screen for the potential health-related inadmissibility grounds found in INA §212(a)(1). Note that Disability, as defined by Rehabilitation Act §504, would not be deemed a public charge absent other disqualifying factors.
3. Family StatusFamily Status, as defined in the Final Rule, is determined based on household size and includes:
The noncitizen’s assets, resources, and financial status factor is defined in the Final Rule as the noncitizen’s “household income, assets, and liabilities (excluding any income from public benefits listed in §212.21(b) and income or assets from illegal activities or sources such as proceeds from illegal gamily or drug sales).”
5. Education and SkillsThe noncitizen’s education and skills factor is defined as their “degrees, certifications, licenses, skills obtained through work experience or educational programs, and educational certificates.”
Accordingly, USCIS has issued a revised Form I-485, Application to Register Permanent Residence or Adjust Status, to collect additional information, including questions related to the public charge statutory factors.
Feel free to reach out by calling (510) 791-0232 if you have any questions for concerns over the new public charge rules.