DHS’s 2022 PUBLIC CHARGE FINAL RULE

The Department of Homeland Security commonly known as DHS released its Public Charge Final Rule on September 8, 2022, with an effective date of December 23, 2022. The rule strengthens public charge policies that have been in place since March 2021, describing who may be classified as a "public charge" and hence denied admission or lawful permanent residency in the United States.

What is the “public charge” rule?

The concept of a "public charge" has been a part of immigration law in the United States since at least 1882, but it wasn't formally defined until May 1999, when the former Immigration and Naturalization Service (INS), the agency that predated the Department of Homeland Security (DHS), issued what is commonly referred to as the "1999 Interim Field Guidance," which defined a "public charge" as someone who is "primarily dependent on the Government for subsistence, support, or protection."

In layman’s terms, a noncitizen is considered a public charge if they depend on one or more public benefits from the United States government to survive. This could be in the form of public cash assistance or long-term institutionalization at the government’s expense. Being a public charge make you ineligible for a green card unless a waiver of inadmissibility is approved.

2022 Public Charge Rule

The Department of Homeland Security issued a new “Public Charge” Final Rule that will go into effect on December 23, 2022. The new rule is a marked change from the strict President Trump-era public charge rule that spent several years in litigation and was ultimately withdrawn by the Biden administration. According to DHS, the Agency will implement section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), in a manner that will be clear and comprehensible for officers as well as for noncitizens and their families that will lead to fair and consistent adjudications, thereby mitigating the risk of unequal treatment of similarly situated individuals.

DHS has declined to include certain aspects of the 2019 Final Rule that in DHS's view caused undue fear and confusion, such as (1) a complicated and unnecessarily broad definition of “public charge”; (2) mandatory consideration of past, current, and future receipt of certain supplemental public benefits, notwithstanding that most noncitizens subject to the public charge ground of inadmissibility would not have been eligible for such benefits at the time of application (and notwithstanding the potential collateral effects of this policy on U.S. citizen children in mixed-status households and noncitizens who are not subject to the public charge ground of inadmissibility); (3) burdensome and in some instances duplicative information collection requirements; (4) designation of certain factors or sets of factual circumstances as “heavily weighted”; and (5) imposition of a “public benefit condition” for extension of stay and change of status, notwithstanding that the nonimmigrant population to whom this condition applied is largely ineligible for such benefits.

"This action ensures fair and humane treatment of legal immigrants and their U.S. citizen family members,” said Secretary of Homeland Security Alejandro N. Mayorkas. He further stated that “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.”

“In keeping with our nation’s values, this policy treats all those we serve with fairness and respect,” said U.S. Citizenship and Immigration Services Director Ur M. Jaddou. “Though there is still much to do to overcome confusion and fear, we will continue to work to break down barriers in the immigration system, restore faith and trust with our immigrant communities, and eliminate excessive burdens in the application process.”

In this rule, as in the 1999 Interim Field Guidance that was in effect for the most of the last two decades, a noncitizen is regarded likely to become a public charge if DHS determines that they are likely to become predominantly dependent on the government for subsistence. This determination will be based on:

• The noncitizen’s age, health, family status, assets, resources, financial status, 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) as well as the State, Tribal, territorial, or local cash benefit programs for income maintenance (General Assistance) or long-term institutionalization at government expense.

DHS will not consider in public charge determinations benefits received by family members other than the applicant. DHS will also not consider receipt of certain non-cash benefits for which noncitizens may be eligible. Upon implementation of the new public charge rule, adjustment of status applicants will be asked to provide further information regarding their household’s assets, liabilities, and financial status, among other factors but will not be required to provide credit history information as the Trump-era regulation mandated. Importantly, the new charge rule will not apply to current legal permanent residents, Green Card renewals, or naturalization applications. In addition, some immigration categories, such as asylees and refugees, are altogether exempt.

If you have questions pertaining to this published rule, it’s best to schedule a consultation with an Immigration Attorney. Email Elizee Law Firm at intro@elizeelawfirm.com our skilled immigration lawyers can answer any questions about Public Charge Final Rule and guide you through every step of the process.

Patricia Elizee is the managing partner of the Elizee Law Firm, an immigration law firm located at 1110 Brickell Avenue, Suite 315, Miami, Florida 33131. Phone 305-371-8846.