DHS Public Charge Final Rule Effective Dec 23, 2022

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.”

INA §212(a)(4)(B) states that, at a minimum, adjudicators should consider the applicant’s “age, health, family status, assets, resources, and financial status; and education and skills.”

First, the benefits to be considered must be benefits actually received by the noncitizen applicant. The noncitizen’s mere application or approval for a benefit (if not received) is not considered. Benefits include those provided by any Federal, State, tribal, territorial, or local government entity of the U.S.

“Public cash assistance for income maintenance” include:

• Supplemental Security Income (SSI),
• Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF),
• Non-Federal “cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names).

“Long-term institutionalization at government expense,” includes Medicaid institutionalization only under Social Security Act §1905.30. The final rule does not cover short periods of institutionalization for rehabilitation purposes or imprisonment for conviction of a crime, and Home and Community-Based Services (HCBS) under Medicaid.

• Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs,
• Children’s Health Insurance Program (CHIP),
• Medicaid (other than for long-term use of institutional services under Social Security Act
• §1905(a)),
• Housing benefits,
• Benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.

Noted that when a noncitizen later applies for an immigration benefit subject to the public charge, public benefits received by the noncitizen during the period in which he or she is exempt or received a waiver from public charge will not be considered, for example, benefits available to refugees, the receipt of these benefits will not be considered. These benefits include resettlement assistance, entitlement programs, and other benefits generally available to refugees, including services provided to unaccompanied minors under 6 USC §279(g)(2).37 This includes Ukrainian Humanitarian Parolees,38 Afghan Humanitarian Parolees,39 and noncitizens who were victims of trafficking under the Victims of Trafficking and Violence Protection Act of 2000.40

The final rule will impact only applicants for admission or USCIS applications for adjustment of status. The rule does not change the Department of State (DOS) standards and processes in visa adjudications, which have generally followed the INS 1999 Interim Field Guidance.

In the final rule, DHS also addresses the relatively underutilized provisions of INA §213 on Public Charge Bonds.

USCIS may “invite” a noncitizen adjustment applicant to submit a bond if found inadmissible solely under public charge ground and whose application is otherwise approvable. Any such bond would be set at an amount no less than $1,000.

For immigrant visa processing through a consular post, a consular officer may similarly set a public charge bond to an immigrant visa applicant whose application is otherwise approvable, but for the public charge inadmissibility. However, USCIS will be the agency that both provides instructions for the submission of the bond and accepts the bond.

The final rule also updates the existing bond cancellation regulation by clarifying that a public charge bond, once posted, will be canceled:

• when the noncitizen dies,
• departs permanently from the United States,
• or is naturalized,

provided the noncitizen did not breach the bond by receiving either public cash assistance for income maintenance or long-term institutionalization at government expense prior to death, permanent departure, or naturalization.

USCIS may cancel a public charge bond at any time after determining that the foreign national is unlikely to become a public charge. A bond may also be canceled to allow the substitution of another bond.

Lastly, a public charge bond will be canceled by USCIS upon review following the 5^th anniversary of the admission or adjustment of status approval, provided that the noncitizen has filed Form I-356, Request for Cancellation of Public Charge Bond, and USCIS concludes that the noncitizen did not receive either public cash assistance for income maintenance or long-term institutionalization at government expense.

Feel free to reach out by calling (510) 791-0232 if you have any questions for concerns over the new public charge rules.