Key Highlights
Under this rule, the determination of whether a noncitizen would be likely to become primarily dependent on the government for subsistence will be based on:
- The noncitizen’s age; health; family status; assets, resources, and financial status; and education and skills
- The filing of Form I-864, Affidavit of Support Under Section 213A of the INA, submitted on a noncitizen’s behalf when one is required;
- The noncitizen’s prior or current receipt of Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.
DHS will not consider in public charge determinations benefits received by family members other than the applicant.
DHS will not consider receipt of certain non-cash benefits for which noncitizens may be eligible, including Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.
Background
Section 212(a)(4) of the Immigration and Nationality Act (INA) renders a noncitizen inadmissible if they are “likely at any time to become a public charge.”A noncitizen deemed likely to become a ‘public charge,’ meaning that they are likely to become primarily dependent on the government for subsistence, can be denied admission or lawful permanent residence. Before 2019, almost all non-cash government benefits were excluded from consideration. However, the Trump administration changed the public charge grounds of inadmissibility, sowing confusion about what government services were permitted and resulting in an overall drop in enrollments.
Erickson Insights
DHS will develop a Policy Manual update to help USCIS officers apply this regulation fairly and consistently and to inform the public about the rule and its implementation. The final rule will be effective on December 23, 2022.
Erickson Immigration Group will continue to share updates as more news is available. If you have questions about anything we’re reporting above or case-specific questions, please contact your employer or EIG attorney.