Introduction
On September 9, 2022, the Department of Homeland Security (DHS) issued the final
rule, pursuant to Immigration and Nationality Act (INA) §212(a)(4), with respect to the public
charge ground of inadmissibility. The rule went into effect on December 23, 2022
The new rule provides definitional and procedural guidance to assist USCIS adjudicators
in properly evaluating whether a person is likely to become a public charge and, importantly,
expressly clarifies that it does not apply to nonimmigrants. This can affect those applying for
green cards in the United States. USCIS has issued a revised Form I-485, Application to
Register Permanent Residence or Adjust Status, to collect additional information, including
questions related to the public charge statutory factors.
Who is likely to become a Public Charge?
An applicant is a public charge only when they are likely at any time to be “primarily
dependent” on the government for subsistence or long-term institutionalized care at the
government’s expense. According to the preamble to the final rule, primarily dependent
“connotes significant reliance on the government for support, and means something more than
dependence that is merely transient or supplementary.” Benefits to family or household
members, which would be disqualifying if received by the immigrant, are not a factor even if the
applicant applied for those benefits on that person’s behalf.
How will Public Charge be considered in the totality of the circumstances?
Consistent with the 1999 Interim Field Guidance, DHS will consider the totality of the
circumstances to determine whether an applicant might become a public charge, looking only at
“statutory factors,” an Affidavit of Support where required, and the current/past receipt of
covered government benefits. The rule indicates that other than a sufficient Affidavit of Support
(Form I-864) if required, no one factor “should be the sole criterion for determining if [a
noncitizen] is likely to become a public charge.” The rule also provides that a sufficient Affidavit
of Support will (as opposed may) be a favorable factor in this analysis. Thus, when an Affidavit
of Support is required, it is likely to be the starting point in any public charge review.
How will the “minimum statutory factors” be considered under the Final Rule?
Under INA §212(a)(4), DHS must “at minimum” consider the noncitizen’s: age; health;
family status; assets, resources, and financial status; and education and skills. The final rule
contains definitions of all of these factors except age. DHS has noted that the totality of the
circumstances review “must be individualized and based on the evidence presented in the
specific case, and the relative weight of each factor and associated evidence is necessarily
determined by the presence or absence of specific facts.”
Health
Health may be the most developed of the minimum factor definitions, perhaps because of
the interplay of noncitizen health circumstances, public benefit programs, and sensitivity around
the disclosure of health information. The final rule states that adjudicators will defer to a medical
exam from a civil surgeon or panel physician (when required) absent evidence that the report is
incomplete. The medical exam is used to screen for the potential health-related inadmissibility
grounds found in INA §212(a)(1). Note that the final rule indicates a disability is “not alone ... a
sufficient basis to determine whether the [noncitizen] is likely at any time to become a public
charge.”
Family Status
Family Status, as defined in the Final Rule, is determined based on household size and includes:
1. The noncitizen;
2. The noncitizen’s cohabiting spouse;
3. The noncitizen’s cohabiting parents, unmarried siblings under 21, and the
noncitizen’s children as defined by INA §101(b)(1) (the definition of a child for
immigration purposes includes a child born in wedlock, a child born out of
wedlock, legitimated child, stepchild, adopted child, orphan, and Convention
adoptee);
4. Any other individuals (including a spouse or child not residing with the noncitizen)
included as a dependent on the noncitizen’s tax return, and;
5. Any other individuals who list the noncitizen as a dependent on their federal tax
return.
Assets, Resources, and Financial Status
The noncitizen’s assets, resources, and financial status factor is defined as the
noncitizen’s “household income, assets, and liabilities (excluding any income from public
benefits listed in §212.21(b) and income or assets from illegal activities or sources such as
proceeds from illegal gamily or drug sales).” There are a few things to analyze in this definition.
First and foremost, it refers to the household as defined by proposed 8 CFR §212.21(f). Second,
the calculation includes income and assets and consideration of outstanding liabilities.
Education and Skills
The noncitizen’s education and skills factor is defined as their “degrees, certifications,
licenses, skills obtained through work experience or educational programs, and educational
certificates.”
What government benefits may be considered under the Final Rule?
The final rule’s definition of the benefits that would be considered under the totality of
circumstances test clarifies that they must be benefits actually received by the noncitizen
applicant. The noncitizen’s mere application or approval for a benefit (if not received) is not
considered. Benefits include those provided by any Federal, State, tribal, territorial, or local
government entity of the U.S. The final rule also defines “public cash assistance for income
maintenance” to include only Supplemental Security Income (SSI), cash assistance for income
maintenance under the Temporary Assistance for Needy Families (TANF) and non-Federal
“cash benefit programs for income maintenance (often called “General Assistance” in the State
context, but which also exist under other names).
Who are the noncitizens subject to the Final Rule?
The final rule will impact only applicants for admission or USCIS applications for
adjustment of status.
For further information or questions you may have, please do not hesitate to contact The
Law Offices of Michael H. Markovitch.
