Updates

  • A new DHS proposed public charge rule, titled Inadmissibility on Public Charge Grounds, was published in the Federal Register at 87 FR 10570 (February 24, 2022). Public comments on the proposed rule are due on or before April 25, 2022. A February 17, 2022 DHS Press Release titled DHS Proposes Fair and Humane Public Charge Rule summarized key aspects of the forthcoming proposed rule, including that DHS will "not consider noncash benefits such as food and nutrition assistance programs...; pandemic assistance; benefits received via a tax credit or deduction; or Social Security, government pensions, or other earned benefits." Also, the proposed rule will not consider receipt of any public benefits in adjudicating applications and petitions for extension of stay or change of status.

  • Howe on the Court blog (February 23, 2022) Justices probe states’ effort to defend Trump immigration rule after Biden stopped defending it in court.

Background

A long-standing Immigration and Nationality Act (INA) public charge provision 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), 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 the likelihood of someone becoming a public charge "at any time" in the future.

At present, public charge determinations are governed principally by the legacy Immigration and Naturalization Service's (INS) 1999 interim field guidance on public charge, but DHS is currently engaged in public charge rulemaking.

DHS rulemaking

NAFSA advocated for changes to DHS's 2018 proposed rule and 2019 final rule public charge rulemaking:

In 2018 DHS proposed public charge regulations that departed significantly from prior guidance on public charge that had been in effect since 1999.

  • On December 10, 2018, NAFSA joined with the American Council on Education (ACE) and other higher education associations in a comment letter to DHS, asking the agency to protect the interests of F and J nonimmigrants.

In 2019 DHS published final public charge regulations that failed to address NAFSA and other association's concerns. However, litigation vacated the 2019 DHS rule, and a subsequent DHS final rule published on March 9, 2021 then removed the 2019 regulations from the CFR and restored the DHS public charge regulations and agency guidance to their state before the 2019 rulemaking. At present, public charge determinations are governed principally by the legacy INS 1999 interim field guidance on public charge. USCIS also removed content related to the vacated 2019 public charge rule from affected USCIS forms and posted updated versions of those forms.

DHS continues to make plans for public charge rulemaking under the Biden Administration.

On August 23, 2021, DHS published an Advanced Notice of Proposed Rulemaking (ANPR), stating that it was seeking "broad public feedback on the public charge ground of inadmissibility that will inform its development of a future regulatory proposal." In the ANPRM, DHS stated that it "intends to propose a rule that will be fully consistent with law; that will reflect empirical evidence to the extent relevant and available; that will be clear, fair, and comprehensible for officers as well as for noncitizens and their families; that will lead to fair and consistent adjudications and thus avoid unequal treatment of the similarly situated; and that will not otherwise unduly impose barriers on noncitizens seeking admission to or adjustment of status in the United States. DHS also intends to ensure that its regulatory proposal does not cause undue fear among immigrant communities or present other obstacles to immigrants and their families accessing public services available to them, particularly in light of the COVID-19 pandemic and the resulting long-term public health and economic impacts in the United States."

  • On October 22, 2021, NAFSA joined with the American Council on Education (ACE) and 15 other higher education associations in a comment letter to the Department of Homeland Security (DHS) asking that any new proposed rule reverse several problematic provisions included in the 2019 final rule so that U.S. students with immigrant family members may access Title IV federal student aid; foreign students, upon graduation, may become legally employed in the United States; and that institutions may provide important social services to students, families, and communities.

A new DHS proposed public charge rule, titled Inadmissibility on Public Charge Grounds, was published in the Federal Register at 87 FR 10570 (February 24, 2022). Public comments on the proposed rule are due on or before April 25, 2022. A February 17, 2022 DHS Press Release titled DHS Proposes Fair and Humane Public Charge Rule summarized key aspects of the forthcoming proposed rule, which codifies important aspects of guidance that has been in effect since 1999 (see the legacy INS 1999 interim field guidance.)

"Under the proposed rule, DHS proposes to define “likely at any time to become a public charge” as “likely to become primarily dependent on the government for subsistence.” Consistent with long-standing agency practice, DHS proposes to consider the following public benefits when making a public charge inadmissibility determination:

  • Supplemental Security Income (SSI); 
  • Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program; 
  • State, Tribal, territorial, and local cash assistance for income maintenance; and 
  • Long-term institutionalization at government expense. 

DHS proposes that it not consider noncash benefits such as food and nutrition assistance programs including the Supplemental Nutrition Assistance Program (SNAP), the Children’s Health Insurance Program, most Medicaid benefits (except for long-term institutionalization at government expense), housing benefits, and transportation vouchers. DHS would also not consider disaster assistance received under the Stafford Act; pandemic assistance; benefits received via a tax credit or deduction; or Social Security, government pensions, or other earned benefits.

By law, many categories of noncitizens are exempt from the public charge ground of inadmissibility and would not be subject to the proposed rule. Some of these categories are refugees, asylees, noncitizens applying for or re-registering for temporary protected status (TPS), special immigration juveniles, T and U nonimmigrants, and self-petitioners under the Violence Against Women Act (VAWA). Under the proposed rule, if a noncitizen received public benefits while in an immigration category that is exempt from the public charge ground of inadmissibility, DHS would not consider the noncitizen’s past receipt of such benefits as part of any future public charge determination.

The proposed rule will have a 60-day public comment period that begins on the date specified in the forthcoming Federal Register publication."

For additional information and background, see Immigration: Public Charge Updates, Congressional Research Service Insight Report, updated March 10, 2022.

The vacated 2019 final rule had sought to extend a public charge determination protocol to applications and petitions for extension of stay or change of status. In the February 24, 2022, however, DHS noted that since neither the statute nor the legacy INS 1999 interim field guidance on public charge addressed extension of stay or change of status, the proposed rule will not consider receipt of any public benefits in adjudicating applications and petitions for extension of stay or change of status.

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.

2019 Public Charge Rules Litigation
Reference Summary of the Blocked 2019 Public Charge Rules