Public Charge Rule Expected To Go In Effect October 15 Temporarily Blocked

On October 11, 2019, a federal judge in New York issued an injunction blocking the amended Public Charge rule. USCIS and DHS published the final rule on August 14, making many applicants inadmissible if an individual was “likely at any time to become a public charge.” 

The temporary injunction prevents the amended Public Charge rule from taking effect on October 15, 2019, while the rule is being challenged in federal court.

The Public Charge requirement has been a policy for a long time but was never defined as expressly.

• The updated regulation shifts away from the petitioner/sponsor’s income when determining public charge inadmissibility and instead focuses on age, health, family status, assets, resources, financial status and education and skills.
• The new guidance is applied to those who are “more likely than not” to receive any of nine benefits for 12 or more combined months within any 36 months. Previous guidance was applied to applicants who might become “primarily dependent” on any of the designated programs.
• DHS also expanded the list of designated state and federal programs considered in the “totality of the circumstances” public charge test. 

Previously, the agency only considered:

• Supplemental Security Income (SSI); 
• Temporary Assistance to Needy Families (TANF);
• State general relief or general assistance;
• Medicaid program that covers institutional long-term care.

 The final regulation adds five new programs to this list:

• Supplemental Nutrition and Assistance Program (SNAP);
• Non-emergency Medicaid;
• Section 8 Housing Choice Voucher Program;
• Section 8 Project-Based Rental Assistance;
• Public Housing.

The final rule also states: 

“DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person. DHS will also not attribute receipt of a public benefit by one or more members of the applicant’s household to the applicant unless the applicant is also a listed beneficiary of the public benefit.”

In limited circumstances, USCIS will exercise discretionary authority to offer an otherwise inadmissible foreign national the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100. However, the actual bond amount will depend on individual circumstances.