New DHS ‘Public Charge’ Rule Could Have Employment-Based Implications

The US Department of Homeland Security makes it tougher for foreign nationals who have received public benefits to adjust, renew, or extend their status in the United States. Applicants can be refused temporary or permanent immigration into the country if it appears they will be likely to become wholly dependent on public assistance. Employers sponsoring foreign nationals should be aware of what the list of public benefits entails.

The new “public charge” rule from the US Department of Homeland Security (DHS) is intended to broaden consequences for those foreign nationals who may have obtained a public benefit and are seeking to adjust, renew, or extend their status in the United States. US immigration law and regulations have historically established that immigration adjudicators have the ability to determine if a foreign national is inadmissible to the United States if they believe the foreign national is likely to become a “public charge.” The longstanding interpretation of this ground of inadmissibility has been that applicants for temporary or permanent immigration to the United States may be refused admission if it appears likely that they will become wholly dependent on public assistance. The new regulation released this week increases the scrutiny on applicants for immigration benefits, indicates that even temporary reliance on public assistance may render an applicant inadmissible to the United States, and broadens the categories of public assistance that could lead to a finding of inadmissibility. The new rule is set to take effect on October 15. Foreign nationals who apply or have applied for adjustment of status to lawful permanent residence or for a change or extension of temporary nonimmigrant status before this date will not be subject to the heightened scrutiny. 

Accordingly, the new rule states the following:

• Applicants for adjustment of status to lawful permanent resident will be required to prove that they did not receive any applicable public benefits for more than 12 cumulative months within the last 36 months. When submitting an Application to Adjust Status (Form I-485), the applicant will now be required to submit a new form, Declaration of Self-Sufficiency (Form I-944), along with certain supporting documentation including Internal Revenue Service transcripts and other financial documentation. A US Citizenship and Immigration Services (USCIS) adjudicating officer has the discretion to deny the application if the officer believes that the applicant is likely to become a public charge in the future.
• USCIS may deny an extension of nonimmigrant (temporary) stay or a change of nonimmigrant status if an applicant received one or more of the applicable public benefits for more than 12 months after initially being admitted as a nonimmigrant into the United States. Nonimmigrants will not be required to submit Form I-944.
• In conducting a public charge review, USCIS will implement a “totality of the circumstances” test, and consider such factors as the applicant’s age, health, family status, financial status and assets, education, and skills, in addition to the receipt of any public benefits and other potentially negative factors that may demonstrate that the applicant will not be able to earn a living.
• An adjustment of status applicant who is found to be a potential “public charge” may be permitted to post a bond of a minimum of $8,100 in order to overcome inadmissibility.

The new rule currently does not apply to port of entry applications adjudicated by US Customs and Border Protection (CBP) or consular processing cases handled through the Department of State (DOS). However, DOS may implement future changes to its Foreign Affairs Manual that are similar to the new rule.

Public Benefit and Public Charge: New Definitions

Both definitions have been revised to clarify the threshold level of receipt of a public benefit that would result in the applicant’s being deemed a public charge. A “public charge” has been defined as a foreign national who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (the receipt of two benefits in one month counts as two months).

The rule also states that an application or certification for public benefits alone may be viewed as evidence of a foreign national’s likelihood of receiving public benefits in the future, but does not in and of itself constitute “receipt.” Furthermore, benefits received by a dependent, such as the spouse or child of the principal applicant, will not be considered unless the principal applicant is listed as also receiving the benefit. Moreover, if a foreign national is the person receiving benefits on behalf of another (for instance as a parent or legal guardian), that foreign national will not be considered to have received, been certified for, or applied for such public benefits.

Public Benefits

The list of public benefits that may lead to a public charge finding include the following:

• Any federal, state, local, or tribal cash assistance for income maintenance (other than tax credits), including
  • Supplemental Security Income (SSI),
  • Temporary Assistance for Needy Families (TANF), or
  • Federal, state, or local cash benefit programs for income maintenance (also known as “General Assistance” in most instances).
• Food stamp programs, such as the Supplemental Nutrition Assistance Program (SNAP).
• Federal housing benefits, including
  • Section 8 housing assistance under the Housing Choice Voucher Program,
  • Section 8 project-based rental assistance (including moderate rehabilitation), or
  • Public housing under Section 9 of the US Housing Act of 1937.
• Medicaid, except for
  • Benefits received for an emergency medical condition,
  • Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA),
  • 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, and
  • Benefits received by a foreign national under 21 years of age, or by a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).

Exclusions

The following are not considered to be public benefits subject to the new public charge rule:

• Medicaid received by foreign nationals under the age of 21 and pregnant women (note: only while pregnant and for the 60 days after pregnancy).
• Medicare Part D Low Income Subsidy.
• Military service members—and their spouses and children—who are actively enlisted at the time the benefits were received.
• Medicaid received by children of US citizens whose lawful admission for permanent residence allows them to be eligible for US citizenship (pursuant to the Child Citizenship Act).
• Benefits that a foreign national earns through payroll tax or other tax deductions are not considered public benefits for purposes of the public charge rule.

Persons Who Are Statutorily Exempt

Certain foreign nationals are exempt from public charge determinations. Exempt categories include applicants for adjustment who are persons seeking or who have been granted asylum, refugees, certain “special immigrant juveniles,” and certain applicants who were victims of certain crimes or human trafficking, as well as self-petitioners under the Violence Against Women Act.

Going Forward

After the new rule takes effect October 15, employers sponsoring foreign national employees for nonimmigrant visas or US permanent residence may wish to ensure that these employees are familiar with the list of public benefits that may result in a finding of “public charge” inadmissibility. In addition, it is important to consider that the new Form I-944, Declaration of Self Sufficiency, will require significant preparation time to ensure that it is properly completed and has the appropriate supporting documentation.

Contacts

If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC 
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Miami 
Laura C. Garvin

For additional government-related guidance, learn more about our Washington strategic government relations and counseling practice.