Supreme Court: New Public Charge Rule Allows Use of Income-Based Immigration Restrictions

On January 27th, 2020, the U.S. Supreme Court issued a ruling that allows the Department of Homeland Security to use a new definition of a “public charge”. This aggressive effort will heavily restrict the ability of USCIS to issue green cards, work visas, and more. A public charge is an immigrant who places severe economic burden on the United States.

This new rule is effective starting February 24, 2020, and for which we provide in-depth details later in the article. The statute defining the new rule is “Inadmissibility on Public Charge Grounds under INA section 212(a)(4).”

In a 5-4 vote, the court’s ruling overturns previous decisions of lower courts to block the new public charge plan. Public charge laws have been in effect since the Immigration Act of 1882, but the new rules are the by far the largest change in the history of these laws.

What is the New Public Charge Rule?

Originally unveiled in August 2019, the new public charge rule broadens the authority of USCIS to deny immigration requests if the applicant uses public benefits such as food stamps, Medicaid, or government housing programs like Section 8 vouchers. We will update this article as further information when a more detailed list of the benefits is available.

Previously, a public charge was defined in law as someone who relies primarily on the government for long-term subsistence, and since 1999 had only included cash assistance. Under the new rule, a public charge can be someone who uses even a modest amount of government benefits for a relatively short period of time, or is “likely at any time to become a public charge.”

Specifically, the new rule says that an immigrant will be considered a public charge if they received any of the expanded list of benefits for a total of 12 months or more during a 36-month period. This is calculated based on the criteria that using two benefits in the same month counts as having received 2 months worth of benefits.

The rule creates numerous other “heavily weighted” factors for determining if someone is a public charge. Some factors are negative, like needing public benefits for more than 12 months of a 36-month period, while others are positive, such as having household income of at least 250% of the federal poverty level. Contact a knowledgeable immigration attorney for further information on these factors.

What Types of Immigration Requests are Affected by the New Rule?

If found to be a public charge, applicants may be denied when applying for applications such as:

  • Petition for Non-Immigrant Worker (Work Visas) – Form I-129
  • Application to Register Permanent Residence or Adjust Status (Green Cards) – Form I-485
  • Application To Extend/Change Nonimmigrant Status (Temporary Visas) – Form I-539
  • Affidavits of Support – Form I-864 and Form I-864EZ
  • Declaration of Self-Sufficiency – Form I-944
  • Public Charge Bonds – Form I-945

Basically, any application that must meet admissibility requirements is affected by the new rule. However, some applicants are exempt from taking the public charge test, such as:

  • U Visa holders
  • T Visa holders
  • Refugees
  • Asylees
  • VAWA recipients
  • Children who will derive US citizenship from parents
  • HRIFA recipients
  • NACARA recipients
  • SIJS applicants
  • Cubans applying for adjustment of status under the Cuban Adjustment ACT
  • Applicants for renewal of DACA status
  • Applicants for withholding of removal or relief under CAT (Convention Against Torture)
  • Amerasians applying for Adjustment of Status
  • Adjustment of Status under the Liberian Refugee Immigration Fairness (LRIF)

When Will the Public Charge Final Rule Go Into Effect?

On February 24th, 2020, USCIS will implement the Inadmissibility on Public Charge Grounds final rule, except in the state of Illinois, where the rule is enjoined by a federal court as of right now.

This means the final rule will apply to petitions and applications postmarked or submitted electronically on or after February 24, 2020. For petitions and applications sent by UPS, FedEx, and other commercial couriers, the postmark date is counted as the date shown on the courier’s receipt.

When determining if an applicant is likely to become a public charge in the future, officials will also use Febraury 24, 2020 as a cutoff date. However, officials may use the application date, certification date, or receipt date depending on benefits received. This is a complex process, and it is best to consult with an immigration attorney to determine if your benefits received will be counted under the final rule.

Finally, when determining if the public benefits condition applies to petitions or applications for change of status or extension of stay, USCIS will only consider public benefits received on or after February 24, 2020.

Other frequently asked questions about the new public charge rule:

How Does the New Public Charge Rule Affect Green Card Holders?

Immigrants already holding permanent residence status are not subject to the new public charge rule, even if applying for renewal of their green card.

Does the New Public Charge Rule Affect Applications for Naturalization?

No. Current lawful permanet residents (Green Card holders) applying for U.S. citizenship are not subject to public charge inadmissibility.

Get Help With Your Visa or Green Card Application

Whether you are hoping to enter the U.S. on a work visa, navigating a change in non-immigrant status, or trying to get a green card, you have the best chance of success when you work with an experienced immigration attorney. At JacksonWhite Law, our Immigration Law team has over a decade of experience working with the U.S. immigration system. We’re ready to help you work toward your goals.

Call our Immigration team at (480) 626-2388 to discuss your case today.

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