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Public Charge Rule to Take Effect Immediately

Posted February 1, 2020Stephanie Wedel - Sr. AssociateArticles

On January 27, 2020, the U.S. Supreme Court voted 5-4 to allow the Department of Homeland Security’s public charge regulation to go into effect immediately while the appeals process is ongoing.  This decision will affect all states, except Illinois, who currently is under a separate injunction not at issue before the Supreme Court.

The updated public charge regulation expands the groups of applicants that are subject to the public charge review to include not only adjustment of status applicants, but also those filing for changes and extensions of nonimmigrant statuses, such as E-3, H-1B, L-1, TN, etc. 

The new regulation also extends officers’ discretion in adjustment of status applications.  Officers will now be permitted to assess whether an adjustment of applicant is likely to become a public charge in the future.

Public Benefits Included in the Public Charge Final Rule

  • Cash benefits for income maintenance, including Supplemental Security Income (SSI), and Temporary Assistance to Needy Families (TANF)
  • Supplemental Nutritional Assistance Program (SNAP)
  • Most forms of Medicaid (exceptions below)
  • Certain housing programs, including Section-8 and public housing

 Public Benefits Excluded from the Public Charge Final Rule

  • Federal or state retirement benefits, including Social Security retirement benefits
  • Social Security disability benefits
  • Unemployment benefits, and other benefits that an individual earns through payroll tax and other tax deductions
  • Medicare benefits
  • Medicaid benefits received by applicants under 21 years of age and pregnant women during pregnancy and during the 60-day period after pregnancy
  • Medicaid Part D Low-Income subsidy
  • Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act)
  • Medicaid benefits for emergency medical services
  • Benefits received by military service members and their spouses and children
  • Housing programs that provide mortgage assistance or credits. Having a mortgage is not indicative of becoming a public charge.

Effect of Rule on Nonimmigrants

Nonimmigrants (individuals who are in the U.S. in a temporary status including H-1B, L-1, E-3, TN, etc.) who have utilized the public benefits included in the Public Charge Final Rule after their admission to the United States may be denied a change of status or extension of status. If a nonimmigrant, including an employee in H-1B and L-1 status, has received one or more of the included public benefits for more than 12 months in the aggregate within 36 month period since obtaining current status, the applications can be denied.  However, nonimmigrant applications will not be reviewed for the likelihood of becoming a public charge in the future.

Effect of Rule on Adjustment of Status Applicants

Adjustment of status applicants will need to demonstrate that they have not utilized the public programs for more than 12 months in the aggregate in the last 36 months, but the adjudicating officer will also be looking to determine if the applicant is likely to become a public charge in the future.  Adjudicating officers will be looking at a totality of the circumstances to determine future likelihood of becoming a public charge, including age, health, assets, resources, financial status, education and skills, among others. If an adjustment of status applicant is found to be inadmissible under the public charge final rule, they may be able to post a bond of at least $8,100 to overcome this finding.

If you have received any public benefit and are applying for an extension or change of your nonimmigrant status, or will be applying for adjustment of status, please reach out to your designated Meltzer Hellrung attorney.