Today the Department of Homeland Security announced the publication of its new rule on Public Charge inadmissibility. The initial notice of rulemaking was issued in October 2018. See this post for an in-depth analysis of the rule as originally proposed back in October. This post highlights some of the differences between the October 2019 draft rule and the one that was finalized today.
I have one special request for lawyers reading this: do not fall into the narrative that this is all about public benefits programs. Yes, the final rule broadens the public benefits programs that will create public charge issues. Food stamps/SNAP, for example, is now on the “naughty list.” But the impact of the rule is much, much bigger than public benefit programs. The new Form I-944 will create the most scrutiny ever placed on the ability of immigrants to – in the eyes of DHS – be self-sufficient. The government will look at their employment history, credit score and English language ability. That is the big news here.
Note: The final rule announcement is 837 pages. I will be updating this post as I work through the document. [Last updated 8/16/19 @ 2:30 PM PST]
Full-length public charge article is now available.
Follow this link to download a detailed, 28-page article that analyzes the new rule. This article is intended for lawyers but may be helpful to the general public as well.
Highlights of the final public charge rule.
1 – The rule will not be retrospective.
This rule will apply only prospectively – which is great news for immigrants and their attorneys. The new standard will apply only to immigration applications after 60 days from now. Likewise, public benefits that an immigrant received in the past will not count against them – except as provided for by the current public charge rule, which has been in effect since 1999.
2 – Carve-out for “primary caregivers.”
The new rule closely examines an immigrant’s work history. This creates a huge issue for a “stay-at-home” parent. Fortunately, the final rule gives some leeway for an immigrant who is the primary caregiver for a child or person with a disability. 8 CFR 212.21(f). At least on paper, this should mean that a parent will not necessarily be found inadmissible if he has not been working for the reason that he is at home caring for his children.
3 – Credit score and financial liabilities will matter.
The October rule draft showed that DHS was going to start looking at immigrant’s credit scores. The final rule doubles down on this, and make very clear that this will be a mandatory part of applications. DHS will look at an immigrant’s credit score, and can also consider financial liabilities (like mortgages or other loans) that don’t count against the person’s credit score. DHS will consider:
[The] alien’s credit history and credit score in the United States, and other evidence of the alien’s liabilities not reflected in the credit history and credit score (e.g., any mortgages, car loans, unpaid child or spousal support, unpaid taxes, and credit card debt)…
8 CFR 212.22(b)(4)(ii)(G)
The applicant will also have to produce three years of tax transcripts, which is more than is currently required for sponsors who sign the I-864.
4 – English language requirement is still here.
A rather shocking element of the October 2018 draft was that DHS will look at an immigrant’s English language ability. Under US immigration law, English language ability is required for naturalization applications but not for green card applications. The final rule retains the English language requirement. 8 CFR 212.22(b)(5)(ii)(D). It remains unclear how DHS will examine applicants. Naturalization applicants take a formal English exam during their DHS interview, so perhaps that test will now be used for all green card applications.
5 – A new standard for (minimizing) the Form I-864, Affidavit of Support.
Prior to the new Public Charge rule, an immigrant was more or less certain to avoid public charge inadmissibility if she had a valid Form I-864, Affidavit of Support. A theme of the new rule is to minimize the importance of the I-864, so that even with a valid I-864 the immigrant can still be found inadmissible. The new rule also contains standards that allow DHS to disregard the I-864 even if the sponsor meets all the legal requirements to serve as a sponsor. DHS will now question”the likelihood that the sponsor [will] actually provide the statutorily- required amount of financial support to the alien.” 8 CFR 212.22(b)(7)(i).
The make that determination, DHS will consider:
- Sponsor’s finances. The sponsor already is required by statute to show income and (if income is deficient) assets at a required level. Now – even if the sponsor meets that requirement – DHS asserts that it has the authority to question whether the sponsor’s income is really enough to support the immigrant.
- Relationship to the immigrant. DHS will look at how the sponsor is related to the immigrant and whether she lives with the immigrant. In short, this will make it very tough in cases where there is a joint sponsor who is unrelated to the immigrant.
- Whether the sponsor has signed other I-864s. When completing the I-864, the sponsor is required to disclose whether she has signed other I-864s. If she has, that will now weigh against the immigrant.
The rule is less confusing about public benefit programs. The October 2019 proposal had a very confusing “de minimis” threshold for receiving public benefits. If you received benefits with a dollar value under a certain level, this was unlikely to lead to a public charge determination. DHS has removed that de minimis dollar threshold. Now, the rule is simplified as follows: getting benefits for an aggregate of 12 months in any 36-month period is what triggers a public charge issue. 8 CFR 212.21(A).
Military families. The final rule also contains an exemption for military families. 8 CFR 212.21(b)(7). Specifically, they will not be penalized for receiving public benefits. This applies both if the immigrant/applicant is a service member, as well as if the immigrant/applicant is the spouse or child of a service member.
Insurance will help. DHS revised the rule to provide that insurance will help an immigrant overcome public charge inadmissibility. That is now listed as a “heavily-weighted” positive factor. Subsidized care under the ACA (Obama Care), however, will not count for this purpose.
Frequently asked questions about the final rule.
What programs count as public benefits?
The final rule lists the following programs as those that are considered “public benefits:”
- Supplemental Security Income (SSI);
- Temporary Assistance for Needy Families (TANF);
- Any other Federal, State or local cash benefit programs (i.e., general assistance);
- Supplemental Nutrition Assistance Program (SNAP, i.e., food stamps);
- Section 8 Housing Assistance under the Housing Choice Voucher Program;
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
- Medicaid (with exceptions including emergency treatment); and
- Public Housing under section 9 of the U.S. Housing Act of 1937.
The proposed rule had also listed Medicare Part D (prescription drug coverage) and “institutionalization for long-term care at government expense.” Neither of those is listed on the final rule as public benefit programs.
Will immigrants be penalized if they are already enrolled in a prohibited program?
The final rule is prospective only. As discussed below, the core of the new public charge rule is a totality of circumstances test. Further, under that test there are four specific circumstances that are defined as “heavily-weighted negative factors.” One of these heavily-weighted negative factors is if the immigrant has received public benefits, as defined in the final rule. However, this applies only to public benefits received following publication of the final rule.
Receiving public benefits for more 12 or more months in a 36-month period makes an individual a public charge by definition. But this does not mean that enrolling in the prohibited programs for a shorter prior of time is safe. In the preamble to the final rule, DHS notes:
[Under the proposed rule] USCIS would have been unable to consider an alien’s past receipt of public benefits below the threshold at all, even if such receipt was indicative, to some degree, of the alien’s likelihood of becoming a public charge at any time in the future. Under this final rule, adjudicators will consider and give appropriate weight to past receipt of public benefits below the single durational threshold described above in the totality of the circumstances.
Under the final rule, DHS will consider whether the applicant has enrolled in any of the prohibited program at all – not just above the de minimis threshold. The applicant will be required to disclose whether she has “applied for or received” prohibited public benefits. DHS will consider evidence that the applicant “applied for or received” public benefits only after 60 days following publication of the final rule. However, it will consider evidence of whether the applicated “disenrolled or requested to be disenrolled” from public benefits at any time, including prior to publication of the final rule
Use of public benefits prior to the new rule will be treated under the old public charge standard that had been in effect since 1999. The programs that were considered under the old rule were: cash assistance for income maintenance, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), State and local cash assistance programs that provide benefits for income maintenance (i.e., general assistance), Medicaid, and institutionalized for long-term care. The rule is clear that, “DHS ill not consider as a negative factor any other public benefits” received prior to the final rule.
What if a family member has received public benefits?
An applicant is not penalized if other household members have received public benefits. The applicant is not imputed with negative consequences unless she is specifically listed as a beneficiary of the program.