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The 2022 Public Charge Inadmissibility Rule
Contributor: Van T. Doan
For well over a hundred years, the United States has had a policy of allowing federal officials to deny noncitizens entry into the United States to someone who is, or who is likely to become, a “public charge.” In addition, individuals who are already present in the United States can be denied adjustment to lawful permanent resident (LPR) status, meaning they can be denied a green card on public charge grounds.
However, the factors considered in deciding whether someone is considered a public charge have evolved over time. During the Trump administration, the public charge rule was expanded to include more publicly-funded programs, including Medicaid. However, on September 9, 2022, the Biden Administration published new regulations relating to public charge inadmissibility. Those regulations took effect on December 23, 2022. While the new regulations have essentially restored the definition of “public charge” to that which was in place prior to 2019, the incorporation of the new regulations into certain forms like Form I-485 Application to Register Permanent Residence or Adjust Status may make it more difficult for noncitizens to demonstrate they are not inadmissible as someone who may become a public charge.
Who is a Public Charge?
The definition of public charge is established by Immigration & Nationality Act (INA) Sections 212(a)(4) and 237(a)(5). According to the INA, a public charge is a noncitizen “who has become or is likely to become primarily dependent on the federal government for subsistence as demonstrated by either:
- The receipt of public cash assistance for income maintenance, or
- Institutionalization for long-term care at government expense.”
How is Someone Determined to Be a Public Charge?
The determination of whether a noncitizen is likely to become a public charge is forward-looking and is based on the “totality of circumstances.” In other words, the determination focuses on what is likely to happen in the future, not whether an applicant has received public benefits in the past. However, an applicant’s current or past receipt of benefits is a factor considered as part of the totality of circumstances.
The Department of Homeland Security (DHS) analyzes the following factors in determining whether a noncitizen applying to enter the country or adjust status is likely to become a public charge:
- The noncitizen’s age, health, and family status;
- The noncitizen’s assets, resources, and financial status;
- The noncitizen’s education and skills;
- The filing of an Affidavit of Support (Form I-864) by a sponsor on behalf of a noncitizen when that form is required to be submitted;
- Whether the noncitizen currently receives, or has previously received, Supplemental Security Income (SSI); cash assistance under Temporary Assistance for Needy Families (TANF); state, tribal, territorial or local cash benefit programs (also known as General Assistance); or whether the noncitizen has been institutionalized on a long-term basis at the expense of the government.
No one factor, on its own, determines whether an applicant is likely to become a public charge. It is necessary to look at all of the factors at play. For instance, a healthy 22-year old who is currently unemployed and lives at home with parents, but who has recently completed a certificate for a trade at community college and has an affidavit of support on file from a qualified sponsor likely would not be considered inadmissible under the public charge rule.
On the other hand, an unemployed 60-year old with a minimal employment history who lives alone, has no affidavit of support on file, and who has subsisted for years primarily on cash assistance from TANF, might well be considered a public charge.
The public charge analysis is broadly applied to most noncitizens applying to enter the United States or adjust status to become an LPR (green card holder). However, refugees and asylees are exempt from the public charge analysis, as are certain other individuals who are exempt under certain statutes and regulations. In addition, it is possible to apply for a waiver of public charge determination under certain limited circumstances.
Government Benefits That Are Not Considered in a Public Charge Analysis
As a general rule, programs whose eligibility is not based on income, or those that do not provide a primary source of income, are not considered when determining whether an applicant is likely to be a public charge. Examples of programs that the United States Citizenship and Immigration Services (USCIS) does not consider in a public charge determination are:
- Any benefits received by a family member other than the applicant under consideration
- Non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP); housing benefits; Medicaid (unless Medicaid benefits are received for long-term care, such as nursing home care); immunization or disease-testing benefits; and other special-purpose benefits
- Payments for a specific purpose, such as energy assistance, pandemic relief, disaster assistance, or help with childcare.
Overall, the new public charge inadmissibility rule is more favorable to noncitizens than the rule that had been in place since 2019. The new rule has essentially codified field guidance that was in place from 1999 until 2019.
If you have questions about how the new public charge inadmissibility rule affects you or your family, please contact our law office to schedule a consultation.
Categories: Immigration Law
