‘Public charge’ rule would have widespread impact

Michelle T. Kobler
Michelle T. Kobler 20 Nov, 2018

The Department of Homeland Security has published a proposed rule that would expand its ability to deny visas or green card applications on the basis of a “public charge” determination. Specifically, the regulation would broaden the types of public assistance that could render an individual inadmissible. The rule is currently open for notice and comment until Dec. 10. If adopted, the rule would have a widespread impact, subjecting more than 382,000 green card applicants and 517,000 extension or change-of-status applicants each year to a public charge determination, according to DHS estimates. The proposed rule would greatly expand the scope of the public charge determination, applying it to most visa and green card applications and giving adjudicators authority to consider an applicant’s prior use of public benefits as well as likelihood of future public benefit use.

The term “public charge” has never been defined in a formal regulation. However, a 1999 guidance defined it as someone who is “primarily dependent” on public benefits for more than half of his or her income, and instructed adjudicators to consider only cash benefits or institutionalized long-term care in deciding whether someone is a public charge. Non-cash benefits are currently not considered, but that might change soon. Under the proposed rule, adjudicators could consider various non-cash federal or state benefits—including Medicaid, the Medicare Part D low-income prescription drug subsidy, the Supplement Nutrition Assistance Program (SNAP, formerly called “food stamps”), Federal Rental Assistance (Section 8 housing choice voucher program, Section 8 project-based rental assistance, and subsidized public housing), and benefits for institutionalized long-term care—as “heavily weighted negative factors” against the applicant. In addition, the proposed rule would allow adjudicators to look back to evaluate whether the applicant used these benefits within the three years immediately preceding the application, essentially establishing a presumption that even able-bodied applicants are ineligible if they received public benefits in the past.

In addition to the look-back provision, the proposed rule also emphasizes the forward-looking aspect of the law: If an adjudicator decides that the applicant is likely at any time in the future to receive one or more public benefits, the applicant would be inadmissible as a public charge. The new rule would apply both to first-time applicants and renewals. Individuals seeking to renew, change or extend their status may find themselves suddenly denied on public charge grounds. Adjudicators would have the authority to request a new Form I-944, or “Declaration of Self-Sufficiency,” and accompanying evidence, which would add a layer of uncertainty to previously predictable processes. U.S. Citizenship and Immigration Services estimates that it would take an average of 4½ hours to complete the form, and applicants would be required to provide credit reports and scores from one of the three major credit bureaus.

The rule, if finalized in its current form, will cause ambiguity around processing requirements and time lines for employers and individuals applying under legal immigration routes. Even individuals who have been residing in the U.S. and maintaining status for years may suddenly find themselves subjected to additional scrutiny or denials. It should be noted that the rule’s expanded definition of “public charge” would only apply to individuals who directly receive public benefits (benefits received by their family dependents will not count), and that the types of public benefits added by this rule would only count against visa eligibility if they are received after the effective date of the rule.

Employers are encouraged to comment before the Dec. 10 deadline.

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