On January 27, 2019, the U.S. Supreme Court ruled that the U.S. Department of Homeland Security (DHS) may implement its "public charge" rule in all states except Illinois.
As background, in August 2019, the DHS announced that it would expand the definition of "public charge" for U.S. immigration purposes, which was originally set to take effect on October 15, 2019. Previously, consideration of whether a foreign national was likely to become a "public charge" (i.e., a person primarily dependent on the U.S. government for income) was limited only to whether the individual received cash assistance public benefits (such as Supplemental Security Income, Temporary Assistance for Needy Families, and other state/local "general assistance" programs). Under the new rule, however, this definition has been expanded to include many non-cash and special purpose cash benefits such as (among other programs):
- Medicaid (even for short-term use)
- Children's Health Insurance Program (CHIP)
- Supplemental Nutritional Assistance Program (SNAP, or more commonly referred to as "food stamps")
- Federal housing assistance
In response to DHS's proposal of the expanded definition, a federal judge in New York imposed a nationwide injunction in October 2019, blocking the government from enforcing the broader rule. The U.S. Supreme Court has now lifted this nationwide injunction so that the new "public charge" rule will be enforced in all states expect for Illinois (as long as lawsuits challenging the rule continue in the lower courts). If the government determines that a foreign national applicant is likely to become a "public charge," DHS can use the designation to deny both immigrant (i.e., green card) and nonimmigrant (i.e., H-1B, L-1, E-2, F-1, etc.) benefits to the individual.
Under the new "public charge" rule, adjustment of status (green card) applicants, including employment-based applicants, who file Form I-485 applications with the U.S. Citizenship and Immigration Services (USCIS) will be subject to a "totality of circumstances" test designed to determine their likelihood of becoming a "public charge" at any time in the future. To do so, DHS will require the completion and submission of a new 18-page form to determine self-sufficiency/income, as well as detailed documentation in support of the same. The new test will review factors used to determine whether the applicant has sufficient financial resources to keep them from relying on government programs. These include the applicant's age, household size, income, financial liabilities, health, education, and skills, as well as prior receipt of certain public benefits. We expect DHS to post new versions of certain application forms within the next few days.
Additionally, nonimmigrant visa applicants (i.e., those filing Form I-129 change of status or extension of status petitions with USCIS) will be required to disclose whether they have received (or are certified to receive) certain public benefits on or after October 15, 2019. If the applicant has received any of the above-listed public benefits for more than 12 months (within a 36-month period since obtaining their current nonimmigrant status), it could negatively impact their application.
Finally, the U.S. Department of State (DOS) also previously issued its own new "public charge" regulation, which is very similar to the DHS version. This new rule would apply to foreign nationals who apply for visas at U.S. Consulates abroad. Applicants are not yet subject to this new rule, as DOS has delayed its implementation until a new application form is in place. DOS's new "public charge" rule is also being challenged through lawsuit in a lower court.
We will continue to closely monitor the implementation of the new "public charge" rule, including any new USCIS policy guidelines as the new rule is enforced, and will notify you of any changes/updates as they occur.
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