Read the Final Rule

Read the DHS Final Rule: Inadmissibility on Public Charge Grounds, published in the Federal Register at 84 FR 41292 (August 14, 2019), effective October 15, 2019.

General Summary

On August 14, 2019, the Department of Homeland Security (DHS) published a final rule effective October 15, 2019 that prescribes "how DHS will determine whether an alien applying for admission or adjustment of status is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA or the Act) [8 USC 1182(a)(4)], because he or she is likely at any time to become a public charge. The final rule includes definitions of certain terms critical to the public charge determination, such as "public charge" and "public benefit," which are not defined in the statute, and explains the factors DHS will consider in the totality of the circumstances when making a public charge inadmissibility determination. The final rule also addresses USCIS' authority to issue public charge bonds under section 213 of the Act in the context of applications for adjustment of status. Finally, this rule includes a requirement that aliens seeking an extension of stay or change of status demonstrate that they have not, since obtaining the nonimmigrant status they seek to extend or change, received public benefits over the designated threshold, as defined in this rule."

Also read this Congressional Research Service Legal Sidebar: DHS Final Rule on Public Charge: Overview and Considerations for Congress (August 16, 2019).

Court Challenges

The DHS public charge rule is being challenged in federal court, including by many states. See:

  • City and County of San Francisco and County of Santa Clara v. USCIS et al., U.S. District Court for the Northern District of California, Case 3:19-cv-4717, filed 08/13/19. Read the complaint.
  • States of Washington, Virginia, Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island v. DHS et al, U.S. District Court for the Eastern District of Washington at Richland, Case 4:19-cv-05210, filed 08/14/19. Read the complaint.
  • States of California, Maine, Oregon, Pennsylvania, and the District of Columbia v. DHS and USCIS, U.S. District Court for the Northern District of California, Case 3:19-cv-04975, filed 08/16/19. Read the complaint.
  • New York City and the states of New York, Connecticut, and Vermont v. DHS, U.S. District Court of the Southern District of New York, Case 1:19-cv-07777, filed 08/20/19. Read the complaint.

The complaints also have good descriptions of the new rule and the background of the public charge ground of inadmissibility, so they are well worth reading.

Forms

According to a message on their launch pages, USCIS is in the process of revising several forms to add questions relating to the public charge regulation that becomes effective October 15, 2019. USCIS will accept the current unrevised editions of these forms only if they are postmarked on or before October 14, 2019.

  • Form I-129 (H, L, O, TN, etc. petition) – current unrevised version date: 1/31/2019
  • Form I-539 (application to extend/change nonimmigrant status) – current unrevised version date: 2/4/2019
  • Form I-539A (co-applicants of I-539 principal applicants) – current unrevised version date: 2/4/2019
  • Form I-485 (adjustment of status to permanent residence) – current unrevised version date: 1/31/2019
    • USCIS will also create a new form, Form I-944 Declaration of Self-Sufficiency that I-485 adjustment of status applicants will have to complete to provide information on receipt of public benefits.
  • Form I-912 (request for fee waiver) – current unrevised version date: 1/31/2019.

USCIS will process the current editions of these forms only if they are postmarked on or before October 14, 2019. Starting October 15, 2019, USCIS will only accept the forthcoming revised versions of those forms, and will reject any earlier versions postmarked on or after October 15, 2019.

USCIS will make available the revised versions of these forms by October 15, 2019.

Brief Overview

Definitions of Public Charge and Public Benefits under INA 212(a)(4)

The new DHS regulations redefine the terms and conditions of the public charge ground of inadmissibility established by INA 212(a)(4) [8 USC 1182(a)(4)].

Under the new rule at 8 CFR 212.21(a), "public charge" means an alien who receives one or more public benefits, as defined at new 8 CFR 212.21(b), "for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)."

The public benefits to be listed at 8 CFR 212.21(b), receipt of which will be counted towards this threshold, include the following. This is a unique list. Benefits other than these are not defined as public benefits for purposes of this rule.

Application

The new DHS regulations govern two principal areas, in different ways:

There are other changes of course, but we will focus in the above in this NAFSA resource.

Nonimmigrants Applying for COS or EOS

The new DHS rule requires applicants for change or extension of nonimmigrant status to demonstrate that "since obtaining the nonimmigrant status" they seek to extend or change, until the date USCIS adjudicates the COS or EOS application, they have not received one or more of the listed public benefits over the designated duration threshold. DHS will only consider public benefits received on or after October 15, 2019 for petitions or applications postmarked on or after that date.

To accomplish this, the new rule amends the following core COS and EOS provisions effective October 15, 2019:

8 CFR 248.1(a) - change of status

"(a) General. Except for those classes enumerated in § 248.2 of this part, any alien lawfully admitted to the United States as a nonimmigrant, including an alien who acquired such status in accordance with section 247 of the Act who is continuing to maintain his or her nonimmigrant status, may apply to have his or her nonimmigrant classification changed to any nonimmigrant classification other than that of a spouse or fiance(e), or the child of such alien, under section 101(a)(15)(K) of the Act or as an alien in transit under section 101(a)(15)(C) of the Act. Except where the nonimmigrant classification to which the alien seeks to change is exempted by law or regulation from section 212(a)(4) of the Act, as a condition for approval of a change of nonimmigrant status, the alien must demonstrate that he or she has not received since obtaining the nonimmigrant status from which he or she seeks to change, public benefits, as described in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). DHS will only consider public benefits received on or after October 15, 2019 for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date. An alien defined by section 101(a)(15)(V) or 101(a)(15)(U) of the Act may be accorded nonimmigrant status in the United States by following the procedures set forth in 8 CFR 214.15(f) and 214.14, respectively."

8 CFR 214.1(a)(3)(iv) - extension of status

"(iv) Except where the nonimmigrant classification for which the alien seeks to extend is exempt from section 212(a)(4) of the Act or that section has been waived, as a condition for approval of extension of status, the alien must demonstrate that he or she has not received since obtaining the nonimmigrant status he or she seeks to extend one or more public benefits as defined in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). For the purposes of this determination, DHS will only consider public benefits received on or after October 15, 2019 for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date."

This is a "backward-looking" standard that looks only to whether "since obtaining the nonimmigrant status from which he or she seeks" to change or extend until the date USCIS adjudicates the COS or EOS application, the applicant received "one or more public benefits, as defined at new 8 CFR 212.21(b), "for more than 12 months in the aggregate within any 36-month period" before USCIS adjudicates the COS or EOS application. The enumeration of public benefits at 8 CFR 212.21(b) is a closed, exhaustive list, so USCIS should not consider receipt of benefits not on this list in its public charge determination for COS or EOS applicants.

USCIS will amend Form I-539 and Form I-129 to elicit the information it needs to make this determination for COS and EOS applicants.

F-1 Reinstatement Applicants

It is unclear how, if at all, the new public charge rules will apply to F-1 reinstatement applicants. Although the final rule did not amend the F-1 reinstatement regulations, it may also be possible that USCIS could apply the COS/EOS public charge determination to reinstatement applicants, since F-1 students also use Form I-539 to apply for reinstatement. It could also be possible that USCIS might consider a reinstatement applicant to be an "applicant for admission," and apply the more burdensome "more likely than not at any time in the future to become a public charge" standard. As with all reinstatement applications, the applicant would do best to retain experienced immigration counsel to represent them in the reinstatement application.

Applicants for Admission and Applicants for Adjustment of Status

While the public charge determination that USCIS will make in the context of an application for change or extension of nonimmigrant status is backward looking, in the following situations DHS must consider the totality of the circumstances and make a prospective, forward-looking determination of whether someone is likely at any time in the future to become a public charge as defined in 8 CFR 212.21.

The public charge ground of inadmissibility at INA 212(a)(4) [8 USC 1182(a)(4)] provides in general that:

"Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible."

The statute then directs DOS and DHS to consider at a minimum the following factors when making a public charge determination: age, health, family status, assets, resources, and financial status, and education and skills.

However, the statute does not define "public charge," or provide any detail about how "age, health, family status, assets, resources, and financial status, and education and skills" should be considered in determining likelihood of becoming a public charge "at any time" in the future.

Until the new regulation takes effect on October 15, 2019, DHS will continue to follow legacy INS policy guidance [published at 64 FR 28689 (May 26, 1999)], which more narrowly defines "public benefits" to exclude non-cash benefits (other than institutionalization for long-term care) and special-purpose cash benefits not for income maintenance. Under the 1999 guidance, for example, receipt of food stamps was not considered in public charge determinations, because they are non-cash benefits. The new rule will supersede the 1999 guidance, and will, for example, consider receipt of food stamps.

First, the new rule defines the statutory phrase "is likely at any time" to become a public charge, at 8 CFR 212.21(c):

(c) Likely at any time to become a public charge. Likely at any time to become a public charge means more likely than not at any time in the future to become a public charge, as defined in 212.21(a), based on the totality of the alien's circumstances.

Second, as does the statute, the regulation requires that a "public charge inadmissibility determination must at least entail consideration of the alien's age; health; family status; education and skills; and assets, resources, and financial status." A very detailed new provision at 8 CFR 212.22(b) establishes a protocol for DHS officials to weigh each of these factors, as well as "the immigration status that the alien seeks and the expected period of admission as it relates to the alien's ability to financially support for himself or herself during the duration of the alien's stay."

For each factor listed at 8 CFR 212.22(b),the DHS regulation specifies a "standard," and also lists the primary types of evidence DHS will consider for the factor under that standard.

Third, the new rule also identifies "heavily weighted" positive and negative factors to guide DHS officers "as to how to weigh all the factors present in an alien's case. Each case has different circumstances that will be reviewed in the totality of the circumstances." The preamble continues, "The presence of a single positive or negative factor, or heavily weighted negative or positive factor, will never, on its own, create a presumption that an applicant is inadmissible as likely to become a public charge or determine the outcome of the public charge inadmissibility determination. Rather, a public charge inadmissibility determination must be based on the totality of the circumstances presented in an applicant's case." The heavily weighted factors are listed at 8 CFR 212.23(c). Examples of heavily weighted totality of the circumstances factors from that list include:

What about visa applications and inadmissibility/removal proceedings?

In the preamble to its final public charge rule, DHS states that "DHS is working with DOS to ensure that the Foreign Affairs Manual appropriately reflects the standards in this rule," and that "DOJ plans to conduct rulemaking to ensure that the standards applied in immigration court are consistent with the standards in this rule." DHS explains in the preamble:

"Three different agencies are responsible for applying the public charge ground of inadmissibility, each in a different context or contexts. DHS primarily applies the public charge ground of inadmissibility at ports of entry and when adjudicating certain applications for adjustment of status. This rule amends the standards applicable to those contexts, and also sets forth evidentiary requirements applicable to the adjustment of status context.

DOS Consular officers are responsible for applying the public charge ground of inadmissibility as part of the visa application process and for determining whether a visa applicant is ineligible for a visa on public charge grounds. This rule does not directly revise DOS standards or processes. DHS is working with DOS to ensure that the Foreign Affairs Manual appropriately reflects the standards in this rule.

DOJ is responsible for applying the public charge ground of inadmissibility in immigration court, where DHS may bring and prosecute the charge against certain inadmissible aliens. Immigration judges adjudicate matters in removal proceedings, and the Board of Immigration Appeals and in some cases the Attorney General adjudicate appeals arising from such proceedings. This rule does not directly revise DOJ standards or processes. DHS understands that the DOJ plans to conduct rulemaking to ensure that the standards applied in immigration court are consistent with the standards in this rule."

Also in the preamble to the final rule, DHS clarifies that the INA 212(a)(4)/8 USC 1182(a)(4) public charge ground of inadmissibility, which is the subject of this rulemaking, is different from the INA 237/8 USC 1227 public charge ground of deportability, which is not the subject of this DHS rulemaking:

"the INA also contains a separate public charge ground of deportability. This rule does not interpret or change DHS's implementation of the public charge ground of deportability."

Legal Advice

Public charge determinations usually arise in contexts outside the scope of direct international student and scholar advising duties (i.e., in the context of visa applications, adjustment of status, change of status, and extension of stay applications). While understanding the basic factors involved in public charge determinations is helpful, advisers should encourage students, scholars, and their families to consult an experienced immigration lawyer for assistance with their detailed questions and requests for immigration strategy support and representation.

The Proposed Rule

Consult NAFSA's page on the proposed public charge rule for background on the final rule.

  • USCIS will create a new form, Form I-944 Declaration of Self-Sufficiency that I-485 adjustment of status applicants will have to complete to provide information on receipt of public benefits.
    • Form I-129 (H, L, O, TN, etc. petition) – current unrevised version date: 1/31/2019
    • Form I-539 (application to extend/change nonimmigrant status) – current unrevised version date: 2/4/2019
    • Form I-539A (co-applicants of I-539 principal applicants) – current unrevised version date: 2/4/2019
    • Form I-485 (adjustment of status to permanent residence) – current unrevised version date: 1/31/2019
      • USCIS will also create a new form, Form I-944 Declaration of Self-Sufficiency that I-485 adjustment of status applicants will have to complete to provide information on receipt of public benefits.
    • Form I-912 (request for fee waiver) – current unrevised version date: 1/31/2019.
    1. Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
      • (i) Supplemental Security Income (SSI);
      • (ii) Temporary Assistance for Needy Families (TANF); or
      • (iii) Federal, State or local cash benefit programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);
    2. Supplemental Nutrition Assistance Program (SNAP) (commonly known as "food stamps");
    3. Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD;
    4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
    5. Medicaid under 42 U.S.C. 1396 et seq., except for:
      • (i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
      • (ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
      • (iii) School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;
      • (iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
    6. Public Housing under section 9 of the U.S. Housing Act of 1937.
    1. DHS determinations of inadmissibility based on INA 212(a)(4) [8 USC 1182(a)(4)]. This is a "forward-looking" standard, where DHS determines whether in the "totality of the circumstances" a covered individual is "more likely than not at any time in the future to become a public charge, as defined in 212.21(a)." This protocol is used for individuals applying for adjustment of status to lawful permanent residence as well as those considered to be "applicants for admission" to the United States. Although there are important exceptions, this generally includes:
      • Nonimmigrants being inspected for admission to the United States at a port of entry (POE);
      • New immigrants on an immigrant visa being inspected for admission to the United States at a POE;
      • Lawful permanent residents returning to the United States after an absence of six months or more;
      • Applications for adjustment of status to lawful permanent residence, filed on Form I-485; and
      • Individuals within the United States who entered without inspection
    2. DHS determinations of whether nonimmigrants within the United States who apply to USCIS for a change of status (COS) or extension of status (EOS) have become public charges before their COS or EOS application is adjudicated. This is a "backward-looking" standard that looks only to whether the applicant received "one or more public benefits, as defined at new 8 CFR 212.21(b), "for more than 12 months in the aggregate within any 36-month period" before USCIS adjudicates the COS or EOS application.
    • Applications for adjustment of status filed on Form I-485, adjudicated by USCIS. USCIS will create a Form I-944 Declaration of Self-Sufficiency on which I-485 adjustment of status applicants will have to provide information to establish that they are not likely to become a public charge. The new public charge determination standards and Form I-944 will be required for adjustment of status applications postmarked on and after the October 15, 2019 effective date of the DHS final rule.
    • Applications for admission to the United States
      • Applicants at a port of entry applying for admission to the United States as a nonimmigrant. A CBP officer at a U.S. port of entry usually makes these decisions.
      • New immigrants entering the United States on an immigrant visa. A CBP officer at a U.S. port of entry usually makes these decisions.
      • Lawful permanent residents returning to the United States after an absence of more than 6 months, since they are considered "applicants for admission." A CBP officer at a U.S. port of entry usually makes these decisions.
      • Other individuals who are considered "applicants for admission," including individuals who entered the United States without inspection (EWI). Inadmissibility determinations in these cases are made by DHS officers, with the particular DHS bureau (CBP, ICE, USCIS) depending on the context of DHS's encounter with the individual.
    • Example of a heavily weighted negative factor: actual receipt of public benefits, as described in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period.
    • Example of a heavily weighted postive factor: The alien has private health insurance appropriate for the expected period of admission. Note, however, that health insurance for which the alien receives subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act will not constitute a heavily weighted positive factor (although it does not appear to be a negative factor, either).