On August 14, 2019, The Department of Homeland Security (DHS) published its final rule on the public charge ground of inadmissibility. The new rule which takes effect on October 15, 2019 gives broader discretion to immigration officials when evaluating an applicant’s likelihood to become primarily dependent on the government for support – a public charge. In effect, the rule prevents many immigrants from coming to or staying in the United States based on a broader range of inadmissibility factors. While the published rule currently affects adjudications by the USCIS, it is expected that the Department of State will adopt this criteria in relation to applications for immigrant and nonimmigrant visas abroad.
The Immigration and Nationality Act (INA) S 212(a)(4) states that any individual is inadmissible, if in the opinion of the consular officer, they are likely to become a public charge. Under the new rule, the definition of public charge shifts from an applicant who is likely to become primarily dependent on the government to any person who receives public benefits for more than 12 months over any 36-month period. In this regard, if four different benefits are received in the same month, then this would equate to four months usage of benefits.
In the past, the affidavit of support, which focused primarily on the petitioner’s income, was the primary assessment used for a determination of inadmissibility on public charge grounds. However, the new regulation requires immigration officials to consider the applicant’s totality of the circumstances based on five statutory factors: age, health, family status, assets and resources/financial status, and education/skills. A Declaration of Self-Sufficiency (Form I-944) will now also be required for applicants when applying for a green card.
The newly expanded scope of this rule has caused much controversy nationwide. Many have begun terminating their use of public programs out of fear of denial under the new rule.
While advocacy groups plan to challenge it, Senator Dianne Feinstein (D-Calif) joined by several other Democratic colleagues, have proposed legislation called the “Protect American Values Act,” as a direct response to the new rule. The new legislation, which was introduced on September 17, 2019, aims to prevent the government from using federal funds in the implementation of its new rule on the public charge grounds of inadmissibility. However, as of now, the new rule stands to go in effect on October 15, 2019.
By: Mona Tehrani, Esq.
Virginia Law Center for Immigration and Citizenship, PLLC
11710 Plaza America Dr #2000
Reston, VA 20190
