News & Insights

New Public Charge Rule

Most of you will recall the Trump Era public charge rule, from 2019, which caused chaos and uncertainty and tremendous amounts of paperwork for both applicants and their Attorneys.  This was another attempt by the former President to reduce Immigration by denying Immigration benefits to those who rely on Government aid.

For a recap of the previous rule please refer to our earlier article:

https://www.patellegal.com/the-dawn-of-a-new-era-becoming-familiar-with-the-new-public-charge-rule/

Trump’s public charge rule was heavily criticized, especially during the pandemic, where many feared that by enrolling in Medicaid or seeing treatment for COVID they would become a public charge.  One U.S. District Court issued an injunction to prevent the Trump administration from applying the rule, but this was overturned by a U.S. Court of Appeals decision that allowed the rule to be implemented once again.

The new administration announced in early 2021 that they would not apply the Trump rule on the basis that it was not in the public interest or efficient use of government resources.

On September 8, 2022, DHS announced a final Public Charge rule implementing the previous 1999 Interim Field guidance.  This means USCIS will not consider an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits when determining whether an applicant is likely at any time to become a public charge.

This rule applies to all Noncitizens applying for visas, admission, and adjustment of status.

Current Secretary of Homeland Security Alejandro N. Mayorkas had the following to say about the new rule:

“This action ensures fair and humane treatment of legal immigrants and their U.S. citizen family members.” Furthermore, “Consistent with America’s bedrock values, we will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.”

Under this new rule a noncitizen will likely be considered a public charge if “DHS determines that they are likely to become primarily dependent on the government for subsistence.” This determination will be based on the following:

  • The noncitizen’s “age; health; family status; assets, resources, and financial status; and education and skills,” as required by the INA;
  • The filing of Form I-864, Affidavit of Support Under Section 213A of the INA, submitted on a noncitizen’s behalf when one is required; and
  • The noncitizen’s prior or current receipt of Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.

Another welcomed change from the Biden administration further attempts to restore faith in a broken immigration system.

For questions regarding the above please e-mail cprescott@patellegal.com.

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