Reference Summary of the Blocked 2019 Public Charge Rules
(Retained for reference purposes only)
The 2019 rules
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. The 2019 DHS and DOS regulations, now blocked, provided these definitions, narrowing and superseding prior agency guidance that had been in place since 1999. These regulations impacted the following:
DOS regulations
- Applicants for immigrant or nonimmigrant visas
DHS regulations
- Applicants for adjustment of status filed on Form I-485. USCIS adjudicates adjustment of status applications. USCIS created a new form, 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 effective date of the DHS final rule.
- Applicants applying for admission to the United States as an immigrant or nonimmigrant. A CBP officer at a U.S. port of entry usually makes these decisions. Remember:
- Nonimmigrants presenting themselves at a port of entry are always considered as applying for admission to the United States.
- Lawful permanent residents returning to the United States after an absence of more than 6 months, are considered "applicants for admission," but permanent residents returning after an absence of 6 months or less are not.
- 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.
- Public benefits condition for COS and EOS applicants. The DHS regulation also introduces a related (but different) condition for change of status (COS) and extension of stay (EOS) nonimmigrant applicants, who will have to establish 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."
While the DHS regulation effective date was on hold due to litigation, DHS continued to follow 1999 legacy Immigration and Naturalization Service (INS) policy guidance published at 64 FR 28689 (May 26, 1999), which excluded from consideration non-cash benefits (other than institutionalization for long-term care) and special-purpose cash benefits not for income maintenance. Under INS's 1999 guidance, for example, receipt of food stamps was not considered in public charge determinations, because they are non-cash benefits. Effective March 9, 2021, the DHS regulation is fully vacated and the 1999 legacy INS guidance once again is in effect.
Since there are two agencies issuing regulations on the same statutory provision, DOS communicated at the outset that it intended to align its standards with DHS standards. In the preamble to its now-enjoined final rule at 84 FR 54996 (October 11, 2019) DOS states:
"This interim final rule reflects the Department's interpretation of the pertinent section of the INA as it applies to visa applicants. This rulemaking is also intended to align the Department's standards with those of the Department of Homeland Security, to avoid situations where a consular officer will evaluate an alien's circumstances and conclude that the alien is not likely at any time to become a public charge, only for the Department of Homeland Security to evaluate the same alien when he seeks admission to the United States on the visa issued by the Department of State and finds the alien inadmissible on public charge grounds under the same facts."
Brief Overview of the 2019 Rules
Definitions of Public Charge and Public Benefits under INA 212(a)(4)
The 2019 DHS and DOS regulations redefined the terms and conditions of the public charge ground of inadmissibility established by INA 212(a)(4) [8 USC 1182(a)(4)].
Under the DHS rule at 8 CFR 212.21(a) and the DOS rule at 22 CFR 40.41(b), "public charge" meant an alien who receives one or more public benefits, as defined at 8 CFR 212.21(b) (DHS) or 8 CFR 40.41(c) (DOS), "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 listed at 8 CFR 212.21(b) and 22 CFR 40.41(c), receipt of which on or after February 24, 2020 would have been counted towards this threshold, included the following. This was an exclusive list. Benefits other than these were not defined as public benefits for purposes of these rules.
- 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);
- Supplemental Nutrition Assistance Program (SNAP) (commonly known as "food stamps");
- Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD;
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
- 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).
- Public Housing under section 9 of the U.S. Housing Act of 1937.
The DHS and DOS regulations also contained a very limited number of exceptions for certain groups and circumstances.
Some clarifications from the preamble to the final rules:
DOS Intent to Align with DHS Interpretations
84 FR 54996 (October 11, 2019)
"This interim final rule reflects the Department's interpretation of the pertinent section of the INA as it applies to visa applicants. This rulemaking is also intended to align the Department's standards with those of the Department of Homeland Security, to avoid situations where a consular officer will evaluate an alien's circumstances and conclude that the alien is not likely at any time to become a public charge, only for the Department of Homeland Security to evaluate the same alien when he seeks admission to the United States on the visa issued by the Department of State and finds the alien inadmissible on public charge grounds under the same facts."
DHS on Receipt of Unemployment Insurance Payments Not Being Considered in Public Charge Determinations
84 FR 41292, 41390 (August 14, 2019)
"Consistent with the proposed rule, DHS will continue to exclude state, local, and tribal benefits that are not cash-benefits for these reasons. Further, DHS would not consider federal and state retirement, Social Security retirement benefits, Social Security Disability, postsecondary education, or unemployment benefits as public benefits under the public charge inadmissibility determination as these are considered to be earned benefits through the person's employment and specific tax deductions."
Application
The 2019 DHS and DOS regulations governed three principal areas, in different ways:
- Public Benefits Condition. Nonimmigrants applying for change or extension of status had to demonstrate that "since obtaining the nonimmigrant status" they seek to extend or change, until the date USCIS adjudicated the COS or EOS application, they had not received one or more of the listed public benefits for an aggregate of more than 12 months over the course of 3 years. This was known as the "public benefits condition," and was a different standard than a "public charge" determination.
- Public Charge Determination. Applicants for admission to the United States as well as applicants for adjustment of status must show that they are not likely at any time in the future to become a public charge, a more burdensome standard.
- Public Charge Determination. Applicants for nonimmigrant or immigrant visas must show that they are not likely at any time in the future to become a public charge, a more burdensome standard.
Nonimmigrants Applying for COS or EOS - the Public Benefits Condition
The 2019 DHS rule imposed a new condition on 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 February 24, 2020 for petitions or applications postmarked on or after that date. Since the 2019 DHS rule was vacated, these COS and EOS conditions no longer apply.
Although loosely referred to as a "public charge" determination, the inquiry for change of status and extension of stay applicants was not the full "totality of the circumstances" assessment of future likelihood of becoming a public charge that visa applicants, adjustment of status applicants, and applicants for admission at a port of entry are subjected to. Rather, it was a backward-looking inquiry to ascertain if the COS or EOS applicant actually received one of the specific public benefits "for more than 12 months in the aggregate within any 36-month period" since obtaining the nonimmigrant status that he or she seeks to extend, or from which he or she seeks to change. The COS/EOS standard, although it referred to the rule's definition of public charge, was a new standard introduced by DHS to get around the fact that COS/EOS applicants are statutorily not subject to the public charge ground of inadmissibility that applicants for a visa, admission, or adjustment are subject to. DHS noted in the preamble to the final rule: "Neither the NPRM nor this final rule is intended to apply the public charge ground of inadmissibility to extension of stay or change of status applicants. Instead, DHS is exercising its statutory authority to set a new condition for approval of extension of stay and change of status applications - that the applicant establish that the alien has not received since obtaining the nonimmigrant status he or she seeks to extend or from which he or she seeks to change, and through adjudication, one or more public benefits for more than 12 months in the aggregate within any 36-month period."
To accomplish this, the new rule amended the following core COS and EOS provisions:
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 [February 24, 2020] 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 [February 24, 2020] for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date."
This was a "backward-looking" standard that looked 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.
USCIS updated the USCIS Policy Manual Vol. 2, Part A Chapter 4 - Extension of Stay and Change of Status to reflect the COS and EOS public benefits condition, but this guidance too should now no longer be applicable.
Applicants for Visas, Admission and Applicants for Adjustment of Status
While the public benefits condition that USCIS applied in the context of an application for change or extension of nonimmigrant status was backward-looking, in the following situations DHS and DOS had to 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 and 22 CFR 40.41.
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 2019 DOS rule applied this standard to applicants for immigrant visas and to applicants for nonimmigrant visas. However, the Foreign Affairs Manual at at 9 FAM 302.8 instructed consular officers that, "The amount and type of evidence generally required in an IV case is much greater than that which is required in an NIV case. Your determination that an applicant qualifies for the NIV sought is generally sufficient to meet the requirements of INA 212(a)(4), absent evidence that gives you reason to believe that a public charge concern exists...." ("IV" refers to "immigrant visa" and "NIV" refers to "nonimmigrant visas.")
The 2019 DHS rule applied this standard to adjustment of status applicants, as well as to "applicants for admission" to the United States, which includes:
- 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.
Totality of the Circumstances
As mandated by the statute, the 2019 DHS and DOS regulations required that public charge inadmissibility determinations consider at a minimum an individual's:
- age;
- health;
- family status;
- education and skills; and
- assets, resources, and financial status.
The 2019 rule detailed provisions at 8 CFR 212.22(b) and 22 CFR 40.41 established protocols for DHS and DOS 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" (DHS) and "the visa classification sought" (DOS).
For each factor listed at 8 CFR 212.22(b),the DHS regulation specified a "standard," and also listed the primary types of evidence DHS was to consider for the factor under that standard. The DOS rule at 22 CFR 40.41 combined the standard and examples in its provisions.
The DHS and DOS rules also identified positive and negative factors, and "heavily weighted" positive and negative factors, to guide DHS and DOS officers in weighing the factors present in an alien's case. The preambles to the DHS rule and the DOS rule clarified that no one enumerated factor alone would create a presumption that the alien is likely to become a public charge, but would focus on "the totality of the circumstances."
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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.
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Example of a heavily weighted positive 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).
