USCIS announced that it implemented its Inadmissibility on Public Charge Grounds final rule on February 24, 2020. The final rule states that an applicant is a public charge if he or she has received, or is more likely than not to receive, any of nine public benefit programs for more than 12 months in the aggregate within any 36-month period.
The Public Charge rule does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19. In addition, the rule does not restrict access to vaccines for children or adults to prevent vaccine-preventable diseases. Importantly, for purposes of a public charge inadmissibility determination, USCIS considers the receipt of public benefits as only one consideration among a number of factors and considerations in the totality of the immigrant’s circumstances over a period of time with no single factor being outcome determinative. To address the possibility that some immigrants impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination, nor as related to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).
This final rule also requires immigrants seeking to extend their nonimmigrant stay or change their nonimmigrant status to show that, since obtaining the nonimmigrant status they seek to extend to change, they have not received public benefits (as defined in the rule) over the designated threshold.
The Purpose of the Rule
The final rule enables the federal government to better carry out provisions of U.S. immigration law related to the public charge ground of inadmissibility.
Final Rule Change
The final rule changes the definitions for public charge and public benefits. It also changes the standard that DHS uses when determining whether an immigrant is likely to become a “public charge” at any time in the future and is therefore inadmissible and ineligible for admission or adjustment of status.
Public charge Inadmissibility Ground
Unless specifically exempted by Congress (such as refugees, asylees, certain self-petitioners under the federal Violence Against Women Act, and certain T and U nonimmigrant visa applicants), immigrants subject to the public charge ground of inadmissibility are those seeking:
- Immigrant or nonimmigrant visas abroad;
- Admission to the United States on immigrant or nonimmigrant visas; and
- Adjustment of their status to that of a lawful permanent resident from within the United States.
Most lawful permanent residents are not subject to inadmissibility determinations, including public charge inadmissibility, upon their return from a trip abroad. But some lawful permanent residents can be subject to the public charge ground of inadmissibility because specific circumstances dictate that they be considered applicants for admission.
Congress has exempted certain classes of immigrants from the public charge ground of inadmissibility, such as, refugees, asylees, petitioners under the federal Violence Against Women Act, certain T and U visa applicants, and Afghans and Iraqis with special immigrant visas. This rule includes provisions clarifying the classes of individuals who are exempt from this rule, as well as those who are able to obtain a waiver of public charge inadmissibility.
In considering how much weight to give to the receipt of public benefits that is 12 months or less, in total, within any 36-month period, an officer may consider the dollar amount of public benefit received, where applicable, and how long the immigrants had received the public benefit
. The following factors would weigh heavily against a finding that an immigrant is likely to become a public charge:
- The immigrant has household income, assets, or resources and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for the immigrant’s household size.
- The immigrant is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of the immigrant’s household size.
- The immigrant has private health insurance appropriate for the expected period of admission, so long as the immigrant does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.
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