The Totality of the Circumstances Test Under the 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.”

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.

The final rule does not give definition of age.

The 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.

Family Status, as defined in the Final Rule, is determined based on household size and includes:

• The noncitizen;
• The noncitizen’s cohabiting spouse;
• The noncitizen’s cohabiting parents, unmarried siblings under 21, and the noncitizen’s children as defined by INA §101(b)(1) (the definition of a child for immigration purposes includes a child born in wedlock, a child born out of wedlock, legitimated child, stepchild, adopted child, orphan, and Convention adoptee);
• Any other individuals (including a spouse or child not residing with the noncitizen) included as a dependent on the noncitizen’s tax return, and;
• Any other individuals who list the noncitizen as a dependent on their federal tax return.
• Noted that benefits to family or household members, which would be disqualifying if received by the immigrant, are not a factor even if the applicant applied for those benefits on that person’s behalf.

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).”

The 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.