Last Updated on March 1, 2022 by Anda Malescu
What is the Public Charge Rule of February 24, 2020?
On February 24, 2020, the United States Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) implemented nationwide the Inadmissibility on Public Charge Grounds final rule (Public Charge Final Rule), including in Illinois. Simply put, an individual who is a foreign citizen and who is more likely than not at any time in the future to become a public charge is inadmissible to the US and not eligible to become a lawful permanent resident (also known as a green card holder) pursuant to Section 212(a)(4)(A) of the Immigration and Nationality Act (INA).
The Public Charge Ground of Inadmissibility allows denial of visa applications, visa extensions and green card applications for foreign citizens who are likely at any time to become a public charge or in other words primarily dependent on the government for livelihood support.
A foreign citizen’s dependency on support from the government for the purpose of the Public Charge Final Rule on February 24, 2020 is shown after examining the foreign citizen’s totality of circumstances including financial responsibility based on the foreign national’s age, health, family status, assets, resources, financial status, and education and skills, among other factors, and includes receipt of:
- Public cash assistance (such as Supplemental Security Income, (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutrition Assistance Program SNAP, formerly food stamps, nonemergency Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher HCV program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing, and state general relief or assistance); and
- Long-term care at government expense; and
- Receipt of one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).
According to USCIS’s Fact Sheet, the benefits received by a foreign applicant’s family members are not considered in the public charge determination of the applicant. In addition, the USCIS provides that the following common federal benefit programs are not included in the definition of public benefit as established by the February 24, 2020 Public Charge Final Rule:
- Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
- Medicare
- Medicaid received by applicants while under age 21, while pregnant (and up to 60 days after a pregnancy), or during an emergency
- Disaster relief
- National school lunch or school breakfast programs
- Foster care and adoption
- Head Start
- Children’s Health Insurance Program (CHIP)
- Pell grants and student loans
- AIDS Drug Assistance Program (ADAP)
- Premium Tax Credit under the ACA
- Earned Income Tax Credit (EITC)
- Child Tax Credit.
Who is subject to the Public Charge Rule of February 24, 2020?
Visa applications that ARE IMPACTED by the Public Charge Final Rule effective February 24, 2020 include:
- Applicants for adjustment of status in the United States (individuals seeking permanent residence in the US)
- Applicants for an immigrant visa abroad at a U.S. Consulate in the foreign national’s home country
- Applicants for a nonimmigrant visa abroad at a U.S. Consulate in the foreign national’s home country
- Applicants for admission at the U.S. border who have been granted an immigrant or nonimmigrant visa.
- Applications for adjustment of status to that of lawful permanent resident (also known as LPR or green card holder)
- Applications for Extension of Nonimmigrant Visa within the US postmarked or filed on Feb. 24, 2020 or after
- Applications for Change of Status within the US postmarked or filed on Feb 24, 2020 or after
The nonimmigrants applying for an extension or a change of status within the United States identified above in paragraph 6 and 7 must demonstrate that since obtaining the nonimmigrant status which they seek to extend or change and until the date USCIS adjudicates the Change of Status or Extension of Status application, they have not received one or more of the public benefits listed above for an aggregate of more than 12 months over the course of 3 years.
In addition, there are a number of foreign citizens who are exempt from the Public Charge Final Rule implemented on February 24, 2020. Such exempt individuals are not subject to the public charge ground of inadmissibility, but if they were to apply for adjustment of status under a family-based category, that individual would be subject to the Public Charge Final Rule. It is also important to point out that benefits received by an individual who was not subject to the public charge ground of inadmissibility when the benefits were received are not considered for purposes of the Public Charge Final Rule of February 24, 2020.
The following foreign nationals ARE NOT IMPACTED by the Public Charge Final Rule:
- Refugee applicants and refugees who are applying for adjustment of status
- Asylum applicants and asylees who are applying for adjustment of status
- Applicants for withholding of removal or relief under the Convention Against Torture
- Applicants for initial or re-registration of Temporary Protected Status (TPS)
- Applicants for initial or renewal of Deferred Action for Childhood Arrivals (DACA) status
- Cubans who are applying for adjustment of status under the Cuban Adjustment Act
- Amerasians who are applying for adjustment of status
- Afghan and Iraqi interpreters and translators who are applying for special immigrant visas (SIV)
- Applicants for Special Immigrant Juvenile Status (SIJS)
- Victims of certain crimes who are applying for a U nonimmigrant visa or U visa holders applying for adjustment of status
- Victims of trafficking who are applying for a T nonimmigrant visa; T visa recipients who are applying for adjustment of status no longer have to seek a waiver of public charge inadmissibility
- Victims of domestic violence who are applying for relief under the Violence Against Women Act (VAWA), including approved self-petitioners who are applying for adjustment of status
- Applicants for “registry” based on their having resided in the United States since before 1 January 1972
- Applicants for benefits under the Nicaraguan Adjustment and Central American Relief Act (NACARA)
- Applicants for benefits under the Haitian Relief and Immigrant Fairness Act (HRIFA), and
- Lautenberg parolees who are applying for adjustment of status
How can business and immigration lawyers at Malescu Law help?
Our experienced immigration attorneys in Miami, Florida can assist you with visa applications, green card and citizenship applications for the US and provide guidance through the complexities of the US immigration.
Contact us to schedule an appointment.
Malescu Law P.A. – Business & Immigration Lawyers
