Immigrants who require government support when they move to the United States have faced barriers under the public charge rule for more than a century. Life became even more difficult in 2019 when non-cash programs like food stamps were thrown into the mix.
Fortunately, the Department of Homeland Security no longer operates under the 2019 rule. It is finalizing a new rule.
The “public charge” inadmissibility test causes fear and confusion for many of our clients. While few immigrants want to be a burden on the public purse, there are times when new arrivals need a helping hand. Unfortunately, some applicants have been denied visas because government departments believe, often unfairly, that they will become a public burden.
We hope changes to the “public charge” rule will make life less stressful for immigrants to the United States and clarify the grounds of inadmissibility. The new rules mean non-cash government benefits will no longer threaten immigrants’ eligibility for green cards.
The U.S. Department of Homeland Security (DHS) has announced a Notice of Proposed Rulemaking (NPRM) changing the public charge grounds of inadmissibility. The department claims the changes will reduce fear and uncertainty among immigrant communities and U.S. citizens, “leading to fair and consistent adjudications for those seeking admission at ports of entry or adjustment of status to that of a lawful permanent resident inside the United States.” The DHS says it is working toward a “fair and humane” public charge rule for noncitizens requesting admission to the United States and people applying for lawful permanent residence. The department also wants to ensure immigrants and their families, including U.S. citizens, don’t fail to apply for benefits they are entitled to for fear of immigration consequences.
Under the new rule, a noncitizen would become a public charge if they are “likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.”
The rule clarifies and restricts the grounds applicants for admission or green cards can face denial to the following public charge categories:
- Receipt of Supplemental Security Income (SSI);
- Receipt of 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.
It removes from the equation non-cash benefits considered in the past such as the Supplemental Nutrition Assistance Program (formerly food stamps), and the Children’s Health Insurance Program.
Applicants will no longer be penalized for receiving Medicaid, transportation vouchers, housing benefits, or disaster assistance under programs such as the Stafford Act, tax credits, Social Security, government pensions, or other earned benefits.
The DHS states most noncitizens who are eligible for public benefits will not be affected by the public charge ground of inadmissibility. The proposed rule is unlikely to affect noncitizens who have already become lawful permanent residents.
The DHS is seeking to clarify the rule and add more certainty by listing the categories of noncitizens who are exempt from the public charge ground of inadmissibility under existing rules. Exempt noncitizens include refugees, asylum-seekers, noncitizens seeking temporary protected status, special immigration juveniles, T and U nonimmigrants, and self-petitioner under the Violence Against Women Act.
The change in the public charge rules represents a retreat from a rule rolled out in 2019 under the Trump administration. Immigrants could be disqualified for green cards or not allowed into the United States if they planned to access Medicaid, public housing assistance, or other non-cash support programs such as the Supplemental Nutrition Assistance Program. It was the first major change to a decades-long rule. Since 1882, the U.S. Congress has sought to deny visas to people who would become a “public charge” as immigrants.
In February, Homeland Security Secretary Alejandro Mayorkas said the 2019 rule was “not consistent with our nation’s values.”
A 60-day comment period will be held before the new rule is finalized. The publication of the rule does not change how DHS is currently applying the public charge ground of inadmissibility. DHS states U.S. Citizenship and Immigration Services will continue to apply the public charge ground of inadmissibility consistent with the 1999 Interim Field Guidance, the policy that was in place for two decades before the 2019 public charge rule was implemented.
The immigration attorneys at Gardner & Mendoza are pleased that non-cash programs are no longer a consideration in denying green card applications or access to the United States. The 2019 rule caused fear and concern among immigrants who face numerous hurdles as they make a new life in the United States. Our Virginia Beach-based attorneys can take the stress out of all aspects of the immigration process. Please contact us to schedule a consultation or call (757) 464-9224.