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Inadmissibility on Public Charge Grounds

On August 12, 2019 the U.S. Department of Homeland Security  (DHS) and U.S. Citizenship and Immigration Services (USCIS)  announced a final rule that clearly defines the public charge inadmissibility law INA §212(a)(4).

DHS has revised the definition of public charge to exclude aliens subject to the public charge inadmissibility ground from changing status, adjusting  status to Lawful Permanent Resident and receiving a visa. By new law, in determining whether an alien is inadmissible under this ground, the government must at a minimum consider the alien’s age; health; family status; assets, resources, and financial status; and education and skills; and may consider any required affidavit of support.

This law would give enormous discretion to US Citizenship and Immigration Services (USCIS) officers to reject an immigrant’s application for admission, or for adjustment of status, based on the officer's subjective evaluation whether immigrant will make enough money to support a large family or doesn’t have the resources to provide health care for a preexisting condition. The government does not plan to count against an immigrant any benefits used before the rule went into effect.

This rule would not impact groups of aliens that Congress specifically exempted from the public charge ground of inadmissibility, such as refugees, asylees,  nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles. Additionally, the rule excludes consideration of benefits received by U.S. citizen children of aliens who will acquire citizenship under either section 320 or 322 of the INA, and by alien service members of the U.S. Armed Forces.

Under INA 212(a)(4) 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.

The final rule defines the term public charge to mean an alien who receives one or more designated public benefits for more than 12 months, in total, within any 36-month period.

Factors to be taken into account.

(i)   In determining whether an alien is  excludable  the alien's

  • age;
  • health;
  • family status;
  • assets, resources, and financial status;
  • education and skills;
  • any affidavit of support.

DHS will not consider the Medicaid benefits received:

(1) for the treatment of an “emergency medical condition,”
(2) as services or benefits provided in connection with the Individuals with Disabilities Education Act,
(3) as school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law,
(4) by aliens under the age of 21, and
(5) by pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.

Designated public benefits that can lead to the public charge inadmissibility

  • Cash assistance for income maintenance,
    • Social Security Income (SSI), 42 U.S.C. 1381 et seq.;
    • Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.;
    • Federal, state, or local cash benefits programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);
  • Medicaid (with limited exceptions),
  • the Supplemental Nutrition Assistance Program (SNAP, or food stamps),
  • any benefit provided for institutionalization for long-term care at government expense,
  • Section 8 Housing Choice Voucher Program,
  • Section 8 Project-Based Rental Assistance, and Public Housing.

thresholds for determining whether the person becomes a public charge

(1) Benefits that can be monetized easily (cash benefits, SNAP or food stamps, and Section 8 vouchers and rental assistance) is 15 percent of the Federal Poverty Guidelines (FPG) for a household of one within any period of 12 consecutive months, based on the per-month FPG for the months during which the benefits are received.

  • Poverty Guidelines (Form I-864P), provides current minimum income requirements for use in completing Form I-864. The sponsor must prove they can support the relative by providing documentation that their income is 125% above the mandated poverty line for their family, including the sponsor and all other sponsored family members. The sponsor should complete an I-864 Affidavit of Support when the relative has been scheduled for an immigrant visa interview with a consular officer overseas or when the relative is about to submit an application for adjustment to permanent resident status with the USCIS or with an Immigration Court in the United *48 States except for Alaska and Hawaii State.
Sponsor’s Household Size100% of HHS Poverty Guidelines for 2018125% of HHS Poverty Guidelines*
For sponsors on active duty in the U.S. armed forces who are petitioning for their spouse or childFor all other sponsors
4$25, 100$31,375
8$42,380$52, 975
Add $4,320 for each additional personAdd $5,400 for each additional person

For 2019, the equivalent 15 percent of the FPG dollar value is $1,821. As a result, under the proposed rule, if DHS determines that within any period of 12 consecutive months, an individual is likely to receive these “monetizable” benefits in a cumulative amount above the threshold, DHS would consider the alien inadmissible and ineligible for adjustment of status on public charge grounds.

USCIS will exercise its discretionary authority, in limited circumstances, to offer an alien inadmissible only on the public charge ground the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100 (adjusted for inflation); the actual bond amount would be dependent on the individual’s circumstances.

(3) "This rule also explains how DHS will interpret the minimum statutory factors for determining whether “in the opinion of” the officer, the alien is likely at any time to become a public charge. Specifically, the rule contains a list of negative and positive factors that DHS will consider as part of this determination, and directs officers to consider these factors in the totality of the alien's circumstances. For instance, with respect to the statutory factor for the alien's age, DHS would generally consider it to be a negative factor if the alien is younger than 18 or older than 61, and a positive factor if the alien is between the ages of 18 and 61. These positive or negative factors operate as guidelines to help the officer determine whether the alien is likely at any time to become a public charge, i.e., is more likely than not at any time in the future to receive one or more designated public benefits for more than 12 months in the aggregate within any 36-month period. The rule also contains lists of heavily weighted negative factors and heavily weighted positive factors. For example, the rule includes a heavily weighted negative factor for an alien who is not a full-time student and is authorized to work, but is unable to demonstrate current employment, recent employment history, or a reasonable prospect of future employment. DHS believes that these circumstances should be accorded heavy negative weight in a public charge inadmissibility determination because, as discussed in the preamble to the NPRM and in the preamble to this final rule, the presence of these circumstances suggests a greater likelihood that the alien will become a public charge than other negative factors suggest. The presence of a single positive or negative factor, or heavily weighted negative or positive factor, will never, on its own, create a presumption that an applicant is inadmissible as likely to become a public charge or determine the outcome of the public charge inadmissibility determination. Rather, a public charge inadmissibility determination must be based on the totality of the circumstances presented in an applicant's case.

With respect to applications for adjustment of status in particular, this rule also provides a more comprehensive evidentiary framework under which U.S. Citizenship and Immigration Services (USCIS) will consider public charge inadmissibility. Under this rule, applicants for adjustment of status who are subject to the public charge ground of inadmissibility must file a Declaration of Self-Sufficiency (Form I-944) with their Application to Register Permanent Residence or Adjust Status (Form I-485) to demonstrate they are not likely to become a public charge. The Form I-944 only applies to adjustment applicants and not applicants for admission at a port of entry.

In addition, applicants required to submit Form I-864, Affidavit of Support Under Section 213A of the INA, in accordance with section 212(a)(4)(C) or (D), must generally submit Form I-944 with the Form I-485. Failure to submit each form, where required, may result in a rejection or a denial of the Form I-485 without a prior issuance of a Request for Evidence or Notice of Intent to Deny."

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