DHS Proposes Changes to Public Charge Rules

December 13, 2018

 

On October 10, 2018, the Department of Homeland Security (DHS) published a proposed rule entitled Inadmissibility on Public Charge Grounds. 83 FR 51114. Public comments on the proposed rule had to be submitted on or before December 10, 2018.

Read the proposed public charge rule

NAFSA joined with other higher education groups in a comment letter led by the American Council on Education (ACE). While the associations expressed general concerns about the proposal, the comments particularly focused on the negative impact this proposal would have on international and first-generation American college students and scholars and their families.

Background

A long-standing Immigration and Nationality Act public charge provision at INA 212(a)(4) establishes that applicants for a visa, admission, or adjustment of status are inadmissible to the United States if they are likely at any time to become a public charge. INA 212(a)(4) does not directly apply to nonimmigrant applications for extension of stay (EOS) or change of status (COS), because they are not applications for a visa, admission, or adjustment of status. However, DHS has long considered financial ability as a discretionary factor in adjudicating EOS and COS applications. This proposed rule now seeks to codify those discretionary factors for EOS and COS applicants, stating that DHS "believes it sound policy to extend that consideration to extensions of stay and change of status generally," arguing that "the government's interest in a nonimmigrant alien's ability to maintain self-sufficiency for the duration of the temporary stay does not end with his or her admission as a nonimmigrant... Accordingly, DHS is proposing to consider whether the alien has received since obtaining the nonimmigrant status he or she seeks to extend or to which he or she seeks to change, is currently receiving, or is likely to receive public benefits as defined in the proposed rule, when adjudicating an application to extend a nonimmigrant stay or change a nonimmigrant status." The proposal also describes in detail the factors a DHS officer would take into account in a "totality of the circumstances" review of an applicant's financial picture. NAFSA is in the process of analyzing the proposal.

Resources

To prepare for commenting on the proposal, you should first revisit the public charge rules that already exist under current law and policy. Here are a few background resources:

  • INA 212(a)(4), the statutory provision that establishes the public charge ground of inadmissibility
  • AFM 30.8 - Affidavits of Support for Nonimmigrants. This current USCIS Adjudicator's Field Manual (AFM) section references USCIS's long-standing guidance to adjudicators that "Every nonimmigrant seeking admission or extension or change of status must satisfy the inspector or adjudicator that he or she is capable of maintaining status and will not become a public charge."
  • AFM 30.3 Change of Nonimmigrant Status Under Section 248. This AFM section further states, “In addition, the applicant must demonstrate he or she is able to maintain him or herself in the status sought, particularly financially. This issue needs particular examination when the applicant seeks a prolonged stay in any status where employment is not a routine part of the status, for example student status.”
  • 9 FAM 302.8 Public Charge - INA 212(a)(4). This is the current Department of State Foreign Affairs Manual (FAM) section containing guidance for consular officers on determining whether an immigrant or nonimmigrant is ineligible for a visa on public charge grounds. Also within this section see 9 FAM 302.8-2(B)(4) - Applying INA 212(a)(4) in NIV Cases.