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Important New Regulations Expand Public Charge Ground of Inadmissibility

By: James Pittman

The Trump presidential campaign issued many disparaging statements about immigrants, and repeated asserted that newcomers to the United States were taking the jobs of Americans and using the social welfare benefits intended for Americans. Indeed, shortly after the President's inauguration, a draft executive order was leaked in the Washington Post,  which would mandate that concerned federal agencies make sure that non-citizens were not receiving benefits other than those which they permitted to receive, and required the Department of Homeland Security (DHS) and Department of State to establish new regulations

The Secretary of Homeland Security has now proposed major changes in the way DHS applies the public charge ground of inadmissibility.  On September 22, 2018,  DHS posted an advance copy of a Notice of Proposed Rulemaking (NPRM) related to this section of the law. The publication of this notice commences a 60 day period during which interested members of the pubic may comment. After the comment period ends, DHS will eventually publish a final rule in the Federal Register reflecting the date on which the new rules and requirements will go into effect.

The term public charge is found, but not defined, in the Immigration and Nationality Act  (INA) at Section 212(a)(4), which provides "Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible[…] In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s-(I) age;  (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills . . . .”

1999 Field Guidance
USCIS and its predecessor Immigration and Naturalization Service had defined "public charge" to mean an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). We can refer to this definition as the "1999 Field Guidance". While the old rule was never formally promulgated as a final regulation, it has nevertheless been followed in practice by immigration and consular officers since it was published.

Essentially, the 1999 Field Guidance provided that an alien would be considered a public charge if they were "primarily dependent on the government for subsistence", which finding would be shown when either 1) the alien was primarily dependent on public cash assistance for income or 2) the alien was institutionalized in long-term care at government expense.  Under these standards, the following principles were in effect:
1) "mere receipt" of public cash assistance was not sufficient, rather the alien must be primarily dependent on it to be considered a public charge.
2) Insurance based benefits and non-cash benefits or services were not considered, with the exception of institutionalized long-term case
3) The determination was based on the individual alien;s situation, not that of his/her dependents or family as a whole
4) Receipt of public benefits was not the sole factor to be considered, but would be considered along with the alien's age, health, family status, financial status, and education/skills
Summary of Changes in the September 20, 2018 NPRM
The proposed new regulations will result in a major expansion in who may be considered a public charge and will require applicants in many cases to demonstrate that they are self sufficient. New forms will be issued for this purpose. 
1) DHS proposes to define “public charge” as the term is used in sections 212(a)(4) of the Act. The types of public benefits that are considered in public charge inadmissibility determinations will also be enumerated.
2) An alien’s receipt of public benefits will trigger the ground of inadmissibility when such receipt is above a certain threshold, either in terms of dollar value or duration of receipt. The proposed thresholds are 15% of the federal poverty line or duration longer than one year
3) An applicant for adjustment of status, who is inadmissible under section 212(a)(4) of the Act, may be granted adjustment of status in the discretion of DHS upon the giving of a public charge bond,l the specific circumstances when this is permitted are described.
4) Applicants in many instances will be required to complete a new form, which will be Form I-944 Declaration of Self-Sufficiency

Finally, the proposed new regulations all pertain to public charge as a ground of inadmissibility and do not propose to alter the standards applicable to the public charge ground of deportability found at INA Section 237(a)(5). That section provides that "an alien is deportable if he or she has become a public charge within 5 years after his or her date of entry into the United States for causes not shown to have arisen since entry". 8 U.S.C. 1227(a)(5)  The standards of 1999 Field Guidance will continue to apply to the public charge ground of deportability, under which an alien is removable for becoming a public charge if the following circumstances are proved by ICE in a hearing before an Immigration Judge: 
(1) the alien became a public charge within five years of the date of last admission; 
(2) the alien received public cash assistance for income maintenance purposes; 
(3) the alien cannot demonstrate that the need for benefits was based on circumstances that arose after they entered the USA; 
(4) the public cash assistance which the alien received created a legal debt or obligation to repay; 
(5) the alien received a demand to repay the debt from the agency within five years of admission; and 
(6) the alien refused to repay the debt.  

By way of further background, the public charge ground of deportability has seldom been applied in practice, because of the requirement that the alien received a demand for repayment from the benefits-granting agency and refused to repay the debt. In practice, this renders the applicability of the deportability ground quite narrow and aliens are rarely charged as removable under INA Section 237(a)(5).

James Pittman is Co-founder of Docketwise, a leading immigration software, and was previously engaged in the private practice of US Immigration Law. He also regularly teaches Continuing Legal Education (CLE) classes on immigration law topics and legal ethics. He is admitted to practice in New York and New Jersey and is a graduate of Northeastern University School of Law.