by Andrew Howe, Attorney at Law (NC) , BridgehouseLaw LLP
Recently, there has been considerable media coverage involving the redefining and clarification of the term "public charge" by the Department of Homeland Security (DHS) and the Department of State (DOS) in relation to immigration admissibility or inadmissibility to the United States. On August 14, 2019, the Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) published a Final Rule that would define "public charge" to include a wider range of government benefits.
Because the Immigration and Nationality Act ("INA") does not directly define "public charge" as applied to INA section 212(a)(4), which generally renders inadmissible and ineligible individuals seeking visas, individuals seeking admission, or individuals seeking adjustment of status, who are likely to become a public charge. Until now, DHS and USCIS have viewed government assistance relevant to a "public charge" finding as being cash assistance or long-term institutional care. The August 14, 2019, Final Rule would expand that view to include government benefits that consist of non-cash assistance such as the Supplemental Nutrition Assistance Program (SNAP) or food stamps; Medicaid; and various housing benefits. Under the new rule, if an individual receives any of these and other designed public benefits for more than 12 months over a three-year period, he or she may become ineligible pursuant to INA section 212(a)(4) for many immigration benefits.
Obviously, this is a rather sweeping change that could dramatically impact immigration benefits and the immigration application process. While there are certain carve-outs and exemptions from the new rule, anyone currently holding or exploring an immigration benefit in the U.S. should take note. The Final Rule was scheduled to take effect on October 15, 2019, but a lawsuit in federal court in the Southern District of New York has blocked the rule from taking effect for the time being.
Likewise, DOS is also pursuing implementation of changes to the "public charge" requirement. While DOS has stated that visa applicants do not currently need to provide additional information or complete additional steps in the application process, DOS has published an Interim Final Rule that introduces a 4-page form many visa applicants, including many non-immigrant visa applicants, will need to prepare and submit as part of the application process. This document requests declarations regarding a number of sensitive topics including: all sources of income; personal assets; personal liabilities and debts; and information deriving from the previous three years of U.S. federal tax returns.
Again, DOS has not implemented these changes yet. However, these new requirements, if adopted, will substantially alter the burden on visa applicants - and in a highly-intrusive manner. The Interim Final Rule has been posted to regulations.gov and is now requesting public comment. This posting, which has been included below, also provides the draft "public charge" form discussed above.