1. What does the Public Charge Rule Require?

The Public Charge Rule create a bar to admission to the US as a lawful permanent resident (i.e., a Green Card holder) or a temporary non-immigrant (such as students, visitors and people seeking work visas).

If applicants are not able to overcome the requirements of the Public Charge Rule, they will be denied the visa they are seeking — whether at a US Consulate or before USCIS in the US.

The formal rule states: a person seeking admission to the US or seeking to obtain lawful permanent resident (obtaining a Green Card) is inadmissible if the person, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” See section 212(a)(4) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(4),

Under the DHS rule at 8 CFR 212.21(a) and the DOS rule at 22 CFR 40.41(b), “public charge” means a person who receives one or more public benefits, as defined at new 8 CFR 212.21(b) (DHS) or 8 CFR 40.41(c) (DOS), “for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”

New USCIS forms ask if the alien has received or is currently certified to receive (by the benefit-granting agency) any of these benefits. The forms will also ask for the date the alien started receiving the benefit, or if certified, the date the alien will start receiving the benefit, and the date the benefit ended or expires.

2. To Whom Does the Public Charge Rule apply?

The final rule applies to two types of applicants:

• People seeking Green Cards, whether at a US Consulate or through Adjustment of Status in the US.
• People seeking temporary visas for the first time, such as visitor visas, work visas or student visas at a US Consulate or through USCIS in the US.
• People seeking to change visa status or extend visa status in the US through USCIS.

3. Who is Exempt from the Public Charge Rule?

Congress has carved out certain exemptions to the public charge ground of inadmissibility, including:

• Refugees;
• Asylees;
• Certain T and U nonimmigrant visa applicants (human trafficking and certain crime victims, respectively); and
• Certain self-petitioners under the Violence Against Women Act.

4. What do Applicants Need to Prove to Overcome the Public Charge Rule?

US Consulates and USCIS weigh positive and negative factors relating to an applicant’s economic situation when evaluating whether they are likely to become a public charge in the U.S.

• Age;
• Health;
• Family status;
• Assets, resources, and financial status;
• Education and skills;
• Prospective immigration status;
• Expected period of admission; and
• Sufficiency of their funds and assets.

5. Which Public Benefits are Barred by the Public Charge Rule

The public benefits listed at 8 CFR 212.21(b) and 22 CFR 40.41(c), receipt of which on or after February 24, 2020 will be counted towards this threshold, include the following. This is an exclusive list. Benefits other than these are not defined as public benefits for purposes of these rules.

• Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
• (i) Supplemental Security Income (SSI);
• (ii) Temporary Assistance for Needy Families (TANF); or
• (iii) Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names);
• Supplemental Nutrition Assistance Program (SNAP) (commonly known as “food stamps”);
• Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD;
• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
• Medicaid under 42 U.S.C. 1396 et seq., except for:
• (i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
• (ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
• (iii) 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;
• (iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
• Public Housing under section 9 of the U.S. Housing Act of 1937.

6. Are Any Limits Available During the COVID-19 Crisis?

During the COVID-19 outbreak. Court rulings from July 2020 and August 2020 relating to the states of New York, Connecticut and Vermont have held that the Public Charge Rule is not applicable in those states.

7. Which Forms Must be Completed?

The new Public Charge Regulations require applicants before USCIS to complete Form I-944, “Declaration of Self-Sufficiency.”

Applicants before a US Consulate are required to complete Form DS-5540, “Public Charge Questionnaire.”

Donoso & Partners, a leading immigration law firm based in Washington, D.C., will continue to report on developments regarding the immigration law and policy through our news section of donosolaw.com.