On August 14, 2019, the Department of Homeland Security published a final rule concerning the public charge ground of inadmissibility which becomes effective on October 15, 2019, therefore does not apply to cases filed before this date. This rule will apply to both nonimmigrant and immigrant cases, and imposes a “public benefit condition” on requests for change or extension of nonimmigrant status. As a result, many immigration forms are expected to be updated soon to reflect this policy change.
In determining admissibility for nonimmigrants, the Department of Homeland Security will analyze whether the applicant has received any of the designated public benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they are seeking to extend or change. This analysis is entirely retrospective and the lookback period only covers the nonimmigrant’s time in the status that they wish to extend or change.
The designated public benefits include any federal, state, local or tribal cash assistance, Supplemental Nutrition Assistance Program (SNAP), Section 8 Housing Assistance, public housing, and Medicaid except for those under 21 years old or pregnant women. Assistance not regarded as public benefits include emergency medical assistance, disaster relief, national school lunch programs, foster care and adoption, student and mortgage loans, energy assistance, food pantries and homeless shelters, and Head Start.
There are various classes of nonimmigrants exempt from this rule such as A-1, A-2, C-2, C-3, G-1, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and both T and U nonimmigrants. In addition, individuals enlisted in armed forces, serving in active duty or reserve, and their spouses and children are exempt from this rule.
In contrast, the public charge ground of inadmissibility applied to immigrant cases uses a “totality of the circumstances” approach and evaluates whether the applicant is “likely at any time to become a public charge”. This totality of the circumstances test looks to various factors such as age, health, family status, assets, resources, and financial status, the education and skills of the applicant, as well as the affidavit of support. The officer will then weigh both the positive and negative factors to determine whether the applicant is likely to become a public charge and is therefore inadmissible.
On October 11, 2019, the U.S. District Court of the Southern District of New York enjoined and restrained the Department of Homeland Security (DHS) and USCIS from “enforcing, applying, or treating as effective” the DHS Public Charge Final Rule. In addition, the court specifically enjoined the government from implementing the use of any new or updated forms whose submission would be required under the Final Rule, including the Form I-129, Form I-485, Form I-539, Form I-864, Form I-864 EZ, Form I-944, and Form I-945. As of 5:00 pm (ET), USCIS appeared to have removed the new/revised forms from its website.
Given the significant implications of this new rule, it is important to consult with an immigration attorney prior to submitting your immigrant or nonimmigrant case with USCIS. To schedule a consultation an Immigration and Nationality Lawyer at the Nachman Phulwani Zimovcak (NPZ) Law Group, please feel free to call the Firm at 201-670-0006 x (107). Our main office is in Ridgewood, New Jersey. We also have offices located in Raritan, New Jersey and New York City, as well as affiliated offices in India and Canada. For more information about our Firm’s immigration and nationality law practice, please feel free to visit our website at https://www.visaserve.com or to send us an e-mail at info@visaserve.com.