Under the INA, the federal government may deny admission or adjustment of status to noncitizens who are “likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A).

By the plain terms of the statute, the public charge assessment is a prediction about how a noncitizen might respond to their circumstances in the future. USCIS typically conducts its Section

212(a)(4) public charge assessments in one of three situations:

 

(1) when a noncitizen applies to physically and lawfully enter the United States (admission),

(2) when a noncitizen applies for adjustment of status, also known as becoming a lawful permanent resident (“LPR”) or getting a green

card (adjustment of status), and

(3) when an LPR returns to the country after a 180-day absence (also admission).

 

 

Accordingly, both LPRs and noncitizens eligible to apply for LPR status may be subject to the Final Rule (as published in the Federal Register on August 12, 2019 titled Inadmissibility on Public Charge Grounds), as are most other noncitizens seeking entry to the United States. The Final Rule also claims for the Department of Homeland Security the power to require noncitizens applying for changes or extensions of visas to prove that they have not received enumerated public benefits and are unlikely to receive them in the future, even though Section 212(a)(4) does not apply in those circumstances.

 

 

The INA does not expressly define “public charge,” but since Congress first used the term “public charge” in the late 19th Century, it has referred consistently to an individual who primarily

depends on the government for subsistence. In 1999, USCIS’s predecessor agency, the Immigration and Naturalization Service (“INS”), formalized this longstanding definition in administrative

guidance. Specifically, INS defined “public charge” to mean a noncitizen who is “primarily dependent on the government for subsistence, as demonstrated by either

 

  1. the receipt of public cash assistance for income maintenance or
  2. institutionalization for long-term care at government expense.” Field

Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689

(May 26, 1999) (“1999 Field Guidance”); accord Inadmissibility and Deportability on Public Charge

Grounds, 64 Fed. Reg. 28,676 (proposed May 26, 1999).

 

As INS explained, this definition is based upon the plain statutory meaning, historical usage, and case law, and extensive consultation with benefit-granting agencies. See 1999 Field Guidance at 28,692.

 

Moreover, since 1996 Congress has provided that noncitizens generally should not be considered likely to become public charges if they are sponsored by a person in the United States who

has executed a legally enforceable and facially adequate affidavit of support. Congress made such affidavits enforceable and authorized the Department to consider them in public charge assessments, particularly for those seeking admission on the basis of family ties. See 8 U.S.C. §§ 1182(a)(4)(B)(ii),(C), 1183a.

 

For decades, USCIS has assessed an individual’s likelihood of being “primarily dependent on government support” based on use of two discrete sets of benefits: (1) cash benefits under

Supplemental Security Income (“SSI”), Temporary Assistance to Needy Families (“TANF”), or state or local cash assistance programs (also known as “General Assistance”), and (2) long-term, government funded institutionalization—such as in a nursing home or mental health institution.

 

The Final Rule upends this longstanding precedent.

 

 

The Final Rule Represents a Dramatic Shift in Policy

 

On October 10, 2018, DHS published a notice of proposed rulemaking in the Federal Register titled Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct. 10, 2018)

(“Proposed Rule”).

 

In response to the Proposed Rule, DHS received over 266,000 comments. A wide range of commenters urged DHS to rescind or significantly alter the Proposed Rule. San Francisco and Santa

Clara were among those commenters expressing significant concerns about the Proposed Rule and urging DHS to withdraw it from consideration.

 

Despite the significant concerns raised during the comment period, DHS submitted the Final Rule for publication in the Federal Register on August 12, 2019.

 

The Final Rule abruptly changes decades of prior federal practice in at least five critical ways.

 

First, the Final Rule significantly expands the meaning of the term “public charge.”

Instead of retaining the longstanding definition of a noncitizen who is “primarily dependent” on public

assistance to meet basic living requirements—as formalized in the 1999 Field Guidance—the Final Rule

defines public charge to include a noncitizen who simply “receives one or more public benefit” for a

relatively brief duration. 8 C.F.R. § 212.21(a). Mere use of a public benefit, not primary dependence, is

now sufficient for a noncitizen to fall within the meaning of public charge.

 

Second, the Final Rule broadens the scope of benefits whose use can make a person a

public charge, most notably by sweeping in for the first time several non-cash benefits: non-emergency

Medicaid, SNAP, subsidies for Medicare Part D, and public housing and Section 8 housing assistance. 8

C.F.R. § 212.21(b)(2), (6).

 

Third, the Final Rule sets the threshold for use of benefits unreasonably low at 12

months of use within a 36-month period (with receipt of two benefits in one month counting as two

months of use). 8 C.F.R. § 212.21(a). It also authorizes immigration officials to consider receipt of

benefits even below that already-low threshold as part of the “totality of the circumstances.” Final Rule

Part I(C); see also 8 C.F.R. § 212.22(b)(4). In so doing, the Final Rule makes receipt of any amount of

benefit at all relevant to the public charge determination.

 

Fourth, the Final Rule broadens the factors considered during the public charge assessment.

See 8 C.F.R. § 212.22. INA Section 212 already directs DHS to consider a noncitizen’s age;

health; family status; assets, resources, and financial status; and education and skills. 8 U.S.C.

§ 1182(a)(4)(B)(i). The Final Rule adds several, more specific criteria—including family size, household

size, the mere application for certain benefits, and credit score—that do not help to rationally predict whether

a noncitizen is likely to receive more than the threshold amount of public benefits, if any at all.

 

Fifth, as to the “assets, resources, and financial status” factor, the Final Rule disregards

the value of the resources that a noncitizen’s sponsor has legally committed to providing to support the

noncitizen except to the extent the sponsor (i) lives in the noncitizen’s household, (ii) is “already

providing 50 percent or more of [the noncitizen’s] financial support,” or (iii) is “otherwise providing

income [to the noncitizen] on a monthly or annual basis.” Final Rule Part III(G)(4); see also 8 C.F.R.

§ 212.22(b)(4)(ii)(A), (B). Similarly, the Final Rule discounts the value of affidavits of support unless

the sponsor has a close relationship with the noncitizen (including whether the sponsor lives with the

noncitizen) and unless the sponsor has executed only one such affidavit—even though all affidavits of

support are equally legally enforceable. 8 C.F.R. § 212.22(b)(7)(A)(2). Thus, the Final Rule disregards

Congress’s direction that all such affidavits are legally enforceable and Congress’s intent that such

affidavits carry significant weight for noncitizens applying for admission or to adjust status on the basis

of family ties.

 

Taken together, these changes dramatically expand the circumstances under which

noncitizens will be denied entry and adjustments of status on public charge grounds.





The Ninth Circuit Court of Appeals today ( August 15, 2019) dismissed a federal government appeal and ruled that detained migrant children must have access to soap and toothpaste, and cannot be deprived of sleep.

A Justice Department lawyer earlier this year argued before a panel of federal judges that the requirement that children be afforded "safe and sanitary" conditions did not necessarily mean they needed to be given basic hygiene products. The government attorney claimed that the nationwide standard for the treatment of migrant children in custody — was vague and therefore, "it was left to the agencies to determine" what sanitation protocols to follow.  The federal judges did not agree with the position of the Justice Department.


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