Final Rule Implementation
DHS implemented the Inadmissibility on Public Charge Grounds final rule beginning on Feb. 24, 2020, including in Illinois. DHS published the rule on Aug. 14, 2019, but, shortly before the final rule was scheduled to go into effect on Oct. 15, 2019, several federal courts enjoined the rule (that is, legally prohibited DHS from implementing it at that time). The U.S. Supreme Court stayed the last remaining injunction on Feb. 21, 2020, and therefore DHS is no longer prevented from implementing the final rule.
USCIS will apply the final rule to all applications and petitions postmarked (or, if applicable, submitted electronically) on or after that date. For applications and petitions sent by commercial courier (for example, UPS, FedEx, or DHL), the postmark date is the date reflected on the courier receipt. USCIS will reject any affected application or petition that does not adhere to the final rule, including those submitted by or on behalf of aliens living in Illinois, if postmarked on or after Feb. 24, 2020.
The final rule requires applicants for adjustment of status who are subject to the public charge ground of inadmissibility and certain applicants and petitioners seeking extension of stay and change of status to report certain information related to public benefits. Due to litigation-related delays in the final rule’s implementation, USCIS is applying this requirement as though it refers to Feb. 24, 2020, rather than Oct. 15, 2019. Please read all references to Oct. 15, 2019, as though they refer to Feb. 24, 2020.
Applicants for adjustment of status need not report the application for, certification or approval to receive, or receipt of certain previously excluded non-cash public benefits (for example, the Supplemental Nutrition Assistance Program, Medicaid, and public housing) before Feb. 24, 2020. USCIS will also not weigh heavily in the totality of the alien’s circumstances the receipt of certain previously included public benefits (for example, Temporary Assistance for Needy Families, Supplemental Security Income, and General Assistance) if received before Feb. 24, 2020. USCIS will not consider, and applicants and petitioners seeking to extend nonimmigrant stay or change nonimmigrant status need not report, an alien’s receipt of public benefits before Feb. 24, 2020.
The public charge ground of inadmissibility has been a part of the U.S. immigration law for more than 100 years.
An alien who is likely at any time to become a public charge is generally inadmissible to the United States and ineligible to become a lawful permanent resident. Under the final rule, a public charge is defined as an alien who has received one or more public benefits, as defined in the rule, for more than 12 months within any 36-month period.
However, receiving public benefits does not automatically make an individual likely at any time in the future to become a public charge. This fact sheet provides information about public charge and public benefits to help noncitizens make informed choices about whether to apply for certain public benefits. You may also find information about the rule on our public charge webpage.
The final rule addresses the public charge ground of inadmissibility, the public benefit condition application, classifications exempt from the public charge ground of inadmissibility, and public charge bonds.
Under; section 212(a)(4) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(4), an alien seeking admission to the United States or seeking to adjust status to that of a lawful permanent resident (obtaining a Green Card) is inadmissible if; the alien, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” If an alien is inadmissible, we will not grant admission to the United States or adjustment of status.
Applicability and Exemptions
The final rule applies to two types of applicants:
- Applicants for admission or adjustment of status to that of a lawful permanent resident (such applicants are subject to the rule’s public charge ground of inadmissibility unless Congress has exempted them from this ground)
- Applicants for extension of nonimmigrant stay or change of nonimmigrant status (such applicants are subject to the rule’s public benefit condition unless the nonimmigrant classification is exempted by law or regulation from; the public charge ground of inadmissibility)
Congress has carved out certain exemptions to the public charge ground of inadmissibility, including:
- Certain T and U nonimmigrant visa applicants (human trafficking and certain crime victims, respectively); and
- Certain self-petitioners under the Violence Against Women Act.
For a full list of exempt classes of aliens, see 8 CFR 212.23 and the USCIS Policy Manual, Volume 8 – Admissibility, Part G – Public Charge Ground of Inadmissibility [8 USCIS-PM G].
Definition of Public Charge
The final rule defines public charge as an alien who receives one or more public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).
Under the final rule, “likely at any time to become a public charge” means more likely than not at any time in the future to become a public charge (in other words, more likely than not at any time in the future to receive one or more of the public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period, such that, for instance, receipt of two benefits in one month counts as two months).
We determine inadmissibility based on the public charge ground by looking at the factors outlined in 8 CFR 212.22. Our adjudicating officers review the totality of an alien’s circumstances when deciding whether an applicant is likely at any time to become a public charge. This means that the adjudicating officer must weigh both the positive and negative factors. As required by section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and by this final rule, when making a public charge inadmissibility determination, a USCIS officer must consider the applicant’s:
- Family status;
- Assets, resources, and financial status;
- Education and skills;
- Prospective immigration status;
- Expected period of admission; and
- Sufficient Affidavit of Support Under Section 213A of the INA, Form I-864 or Form I-864EZ, when required under section 212(a)(4)(C) or (D) of the INA, 8 U.S.C. 1182(a)(4)(C) or (D).
No single factor makes an alien inadmissible based on the public charge ground, except not filing a sufficient Form I-864 or Form I-864EZ, when required. The determination of an alien’s likelihood of becoming a public charge at any time in the future is a prospective determination that is based on the totality of the alien’s circumstances and by weighing all of the factors that are relevant to the alien’s case.
DHS will only consider public benefits as listed in the rule, including:
- Supplemental Security Income;
- Temporary Assistance for Needy Families;
- Any federal, state, local, or tribal cash benefit programs for income maintenance (often called general assistance in the state context, but which may exist under other names);
- Supplemental Nutrition Assistance Program (formerly called food stamps);
- Section 8 Housing Assistance under the Housing Choice Voucher Program;
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
- Public Housing (under the Housing Act of 1937, 42 U.S.C. 1437 et seq.); and
- Federally funded Medicaid (with certain exclusions).
Benefits Not Considered
DHS will not consider:
- Emergency medical assistance;
- Disaster relief;
- National school lunch programs;
- The Special Supplemental Nutrition Program for Women, Infants, and Children;
- The Children’s Health Insurance Program;
- Subsidies for foster care and adoption;
- Government-subsidized student and mortgage loans;
- Energy assistance;
- Food pantries and homeless shelters; and
- Head Start.
Benefits received by U.S. service members. Under the final rule, DHS will not consider the receipt of public benefits (as defined in the final rule) received by an alien who, at the time of receipt, or at the time of filing or adjudication of the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces.
Benefits received by the spouse and children of U.S. service members. DHS will also not consider the receipt of public benefits by the spouse and children of anyone enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces.
Benefits received by children born to, or adopted by, U.S. citizens living outside the United States. The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under section 320 of the INA, 8 U.S.C. 1431, or children, residing outside the United States, of U.S. citizens who are entering the United States for the purpose of attending an interview under section 322 of the INA, 8 U.S.C. 1433.
Certain Medicaid benefits. DHS will not consider the Medicaid benefits received:
- For the treatment of an “emergency medical condition;”
- As services or benefits provided in connection with the Individuals with Disabilities Education Act;
- As school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law;
- By aliens under the age of 21; and
- By pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.