DHS publishes proposed regulation on ‘public charge’ inadmissibility

10 Oct 18

UNITED STATES

The Department of Homeland Security (DHS) has published a proposed rule in the Federal Register that redefines the “public charge” ground of inadmissibility under the Immigration and Nationality Act for immigrants deemed likely to become dependent on government assistance. The rule closely mirrors a draft rule that the agency posted to its website Sept. 22.

Key points:

  • The rule expands the types of public benefits that DHS officials will consider when determining whether an individual is likely to become a public charge and therefore is ineligible for a visa or green card. The expanded definition includes certain non-cash benefits, such as Medicaid prescription drug subsidies, food stamps, and Section 8 housing assistance.
  • Adjudicators will only consider benefits that an applicant receives directly, not benefits received by their children or other household members.
  • The rule will also require nonimmigrant applicants for change or extension of status to attest that they have not received public benefits and are not likely to receive them in the future, with some exceptions.
  • Only benefits received on and after the effective date of the final rule will be considered and counted as a negative factor, unless they would have been included in the determination under current rules.
  • The proposed regulation has not taken effect yet. The proposed rule is open for a 60-day public comment period that ends Dec. 10. After the agency reviews all comments, it will publish a final rule that is likely to take effect 60 days thereafter.

Background: Under current guidelines, adjudicators only consider cash benefits and generally make a finding of inadmissibility on “public charge” grounds if the applicant relies on cash benefits for more than 50 percent of their income. Under the proposed rule, adjudicators may consider both cash and non-cash benefits, such as Medicaid (except for emergency Medicaid and certain education-related disability services); Medicare Part D low-income prescription drug subsidy, food stamps (Supplemental Nutrition Assistance Program, or SNAP); Section 8 housing vouchers, rental assistance and subsidized public housing; and benefits for institutionalized long-term care.

BAL has produced an FAQ on the proposed regulation, available here.

BAL Analysis: Employers and individuals are encouraged to participate in the public comment period before it closes on Dec. 10, as it is an opportunity to help shape policy and it is not uncommon for the government to revise its proposal in response to feedback from stakeholders. BAL projects that the earliest a final rule could take effect is March 2019. This timeline does not take into account the likelihood of litigation challenging these controversial provisions, which could delay implementation of a final rule. The proposal to require applicants for change and extension of nonimmigrant status to address public charge issues could result in further delays in processing these applications.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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