DHS New Public Charge Rule Takes Effect December 23, 2022

On September 9, 2022, the Department of Homeland Security (DHS) issued a new final rule pertaining to how the agency will be implementing the public charge ground of inadmissibility to determine whether adjustment of status applicants are likely to become primarily dependent on the government for subsistence, which may lead to denial of admission or lawful permanent residence.

The new rule goes into effect on December 23, 2022, and applies to I-485 applications postmarked (or electronically submitted) on or after this date.

Public Charge Factors Considered

Officers should guide their finding of whether a person is likely to become a public charge by the totality of each applicant’s circumstances with respect to the following factors:

  • age;
  • health;
  • family status;
  • assets, resources, and financial status;
  • education and skills; and
  • if required, sufficiency of the Affidavit of Support submitted.

USCIS has publicized that “no one factor serves as the sole criterion for making a public charge inadmissibility determination (except for an insufficient Affidavit of Support Under Section 213A of the INA where required).”

Public Benefits

DHS will take into consideration current or prior receipt of governmental cash assistance by each applicant, including (but not limited to) Supplemental Security Income (SSI), Temporary assistance for Needy Families (TANF), state or local general relief/assistance and Medicaid for long-term nursing home care.

Non-cash benefits that DHS will no longer consider include Supplemental Nutrition Assistance Program (SNAP) or food stamps and other nutritional programs. Children’s Health Insurance Program (CHIP), Medicaid (other than long-term use of institutional services), housing benefits or any benefits of public assistance for immunizations and for testing and treating communicable disease, including (but not limited to) COVID-19.

Officers are instructed not to consider in their determination public benefits received by an application during periods in which they were present in the United States in an immigration category that is exempt from the public charge ground of inadmissibility or for which the noncitizen received a waiver of public charge inadmissibility.

USCIS has issued a revised version of Form I-485 to collect information related to the public charge statutory factors and amended its policy manual guidance.

Exemptions & Immigrant Visa Applications

Certain applications are exempt from the public charge ground, including (but not limited to) I-485 applications based on refugee or asylee status or on VAWA (the Violence Against Women Act).

The DHS final rule does not change the Department of State (DOS) standards and processes for visa adjudication by U.S. consulates overseas – which generally follow the 1999 interim field guidance rule from which the 2022 DHS rule is derived.

This article is for informational purposes only. It is not meant to and cannot substitute the advice of and representation from a competent immigration attorney. Contact our office to speak to our attorneys about your case.