Last week, the U.S. Supreme Court ruled to allow the U.S. Department of Homeland Security’s (“DHS”) NEW Public Charge Rule to take effect.  

Under the Immigration and Nationality Act (INA), an individual who is “likely at any time” to become a “public charge” is inadmissible to the United States and ineligible to become a legal permanent resident.  

Most notably, the rule expands the type of public benefits to be included when making a public charge inadmissibility determination … including Medicaid, food stamps and housing vouchers, among others.

The NEW Public Charge Rule expands the type of public assistance that can be viewed disfavorably in a public charge determination when a foreign national is applying for “admission” or “adjustment of status”. 

IMPORTANT TO NOTE: Green card holders absent for more than 180 days from the US can be subject to “inadmissibility” determinations since they can be regarded as “seeking admission” to the US. 

TAKE NOTE ALSO THAT: The NEW Public Charge Rule also includes a requirement that foreign nationals seeking an “extension of stay” or “change of status” must demonstrate that they have NOT received public benefits. 

A sufficient affidavit of support will no longer determine whether an individual is likely “at any time in the future” to become a public charge.

Rather, the U.S. Citizenship and Immigration Services (“USCIS”) will apply a “totality of circumstances test” that weighs such factors as the alien’s age; health; family status; education and skills; and assets, resources, and financial status when making the determination. 

One heavily weighted negative factor is an applicant’s receipt of specified public benefits for 12 or more months in the aggregate within any 36-month period, beginning no earlier than the 36 months prior to the application for adjustment of status.

New forms, submission instructions, and Policy Manual guidance will be posted by USCIS, and the rule will go into effect on February 24, 2020.  Nachman Phulwani Zimovcak (NPZ) Law Group immigration and nationality lawyers will do their best to keep you apprised of any new developments as they arise. 

DHS will not regard the receipt of specified benefits prior to the rule’s effective date, with the exception of cash assistance and long-term institutionalization benefits that DHS already considers relevant to the public charge determination under current policy. DHS remains enjoined from implementing the rule in the State of Illinois due to pending litigation.

The new rule is a substantial change from over 100 years of public charge determination policy and seeks to limit legal immigration. We continue our uphill battle to obtain US immigration law benefits for our clients in the face of an Administration that resists a clear understanding that US immigration brings value, diversity and entrepreneurialism to our Nation.