Supreme Court clears way for 'public charge' rule

[The Patriot]

[Boats]

Forms Impacted by the Public Charge Rules
USCIS Forms
Update:

On October 10, 2019, USCIS posted revised versions several forms to add questions relating to the public charge regulation that was scheduled to become effective October 15, 2019. USCIS planned to accept the current unrevised (pre-10/15/19) editions of these forms only if they were postmarked on or before October 14, 2019. On October 11, 2019, though, a U.S. District Court in New York issued a nationwide preliminary injunction blocking the enforcement of the DHS public charge rule. The order also enjoined DHS from “Implementing, considering in connection with any application, or requiring the use of any new or updated forms whose submission would be required under the Rule…” USCIS took down the revised forms pending that litigation, and instructed petitioners and applicants to use the current versions of the forms. However, the U.S. Supreme Court's lifting of the preliminary injunction on January 27, 2020 will likely result in USCIS posting and requiring revised versions of the forms. Check the USCIS website for the form you are filing to verify which version USCIS will accept.

Form I-129 (H, L, O, TN, etc. petition) – current unrevised version date: 1/31/2019
Form I-539 (application to extend/change nonimmigrant status) – current unrevised version date: 2/4/2019
Form I-539A (co-applicants of I-539 principal applicants) – current unrevised version date: 2/4/2019
Form I-485 (adjustment of status to permanent residence) – current unrevised version date: 1/31/2019
USCIS also created a new form, Form I-944, Declaration of Self-Sufficiency, that many I-485 adjustment of status applicants will have to complete to provide information on receipt of public benefits.
Form I-912 (request for fee waiver) – current unrevised version date: 1/31/2019, note that although the I-912 launch page states that USCIS will continue to accept the 1/31/2019 version of that form on and after 10/15/2019, "Instructions for the 10/15/19 edition of Form I-912 include guidance on how an approved fee waiver could affect the applicant's eligibility for future immigration benefits that are subject to the public charge ground of inadmissibility."
DOS Forms
On October 24, 2019, DOS opened a 60-day comment period on a proposed public charge questionnaire (Form DS-5540). Comments were due by 12/23/2019. See 84 FR 57142 (October 24, 2019).

Brief Overview
Definitions of Public Charge and Public Benefits under INA 212(a)(4)

The new DHS and DOS regulations redefine the terms and conditions of the public charge ground of inadmissibility established by INA 212(a)(4) [8 USC 1182(a)(4)].

Under the DHS rule at 8 CFR 212.21(a) and the DOS rule at 22 CFR 40.41(b), "public charge" means an alien who receives one or more public benefits, as defined at new 8 CFR 212.21(b) (DHS) or 8 CFR 40.41(c) (DOS), "for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)."

Note that the revised USCIS forms also ask if the alien has received or is currently certified to receive (by the benefit-granting agency) any of these benefits. The forms also ask for the date the alien started receiving the benefit, or if certified, the date the alien will start receiving the benefit, and the date the benefit ended or expires.

The public benefits to be listed at 8 CFR 212.21(b) and 22 CFR 40.41(c), receipt of which on or after October 15, 2019 will be counted towards this threshold, include the following. This is an exclusive list. Benefits other than these are not defined as public benefits for purposes of these rules.

Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
(i) Supplemental Security Income (SSI);
(ii) Temporary Assistance for Needy Families (TANF); or
(iii) Federal, State or local cash benefit programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);
Supplemental Nutrition Assistance Program (SNAP) (commonly known as "food stamps");
Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD;
Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
Medicaid under 42 U.S.C. 1396 et seq., except for:
(i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
(ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
(iii) 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;
(iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
Public Housing under section 9 of the U.S. Housing Act of 1937.
The DHS and DOS regulations also contain a very limited number of exceptions for certain groups and circumstances.

Application
The new DHS and DOS regulations govern three principal areas, in different ways:

Nonimmigrants applying for change or extension of status must demonstrate that "since obtaining the nonimmigrant status" they seek to extend or change, until the date USCIS adjudicates the COS or EOS application, they have not received one or more of the listed public benefits for an aggregate of more than 12 months over the course of 3 years.
Applicants for admission to the United States as well as applicants for adjustment of status must show that they are not likely at any time in the future to become a public charge, a more burdensome standard.
Applicants for nonimmigrant or immigrant visas must show that they are not likely at any time in the future to become a public charge, a more burdensome standard.
There are other changes of course, but we will focus in the above in this NAFSA resource.

Nonimmigrants Applying for COS or EOS
The new DHS rule requires applicants for change or extension of nonimmigrant status to demonstrate that "since obtaining the nonimmigrant status" they seek to extend or change, until the date USCIS adjudicates the COS or EOS application, they have not received one or more of the listed public benefits over the designated duration threshold. DHS will only consider public benefits received on or after October 15, 2019 for petitions or applications postmarked on or after that date.

The COS/EOS standard, although it refers to the new definition of public benefits, is a new standard introduced by DHS to get around the fact that COS/EOS applicants are not in the statutory grouping of applicants for a visa, admission, or adjustment. DHS notes in the preamble to the final rule: "Neither the NPRM nor this final rule is intended to apply the public charge ground of inadmissibility to extension of stay or change of status applicants. Instead, DHS is exercising its statutory authority to set a new condition for approval of extension of stay and change of status applications - that the applicant establish that the alien has not received since obtaining the nonimmigrant status he or she seeks to extend or from which he or she seeks to change, and through adjudication, one or more public benefits for more than 12 months in the aggregate within any 36-month period."

To accomplish this, the new rule amends the following core COS and EOS provisions:

8 CFR 248.1(a) - change of status

"(a) General. Except for those classes enumerated in § 248.2 of this part, any alien lawfully admitted to the United States as a nonimmigrant, including an alien who acquired such status in accordance with section 247 of the Act who is continuing to maintain his or her nonimmigrant status, may apply to have his or her nonimmigrant classification changed to any nonimmigrant classification other than that of a spouse or fiance(e), or the child of such alien, under section 101(a)(15)(K) of the Act or as an alien in transit under section 101(a)(15)(C) of the Act. Except where the nonimmigrant classification to which the alien seeks to change is exempted by law or regulation from section 212(a)(4) of the Act, as a condition for approval of a change of nonimmigrant status, the alien must demonstrate that he or she has not received since obtaining the nonimmigrant status from which he or she seeks to change, public benefits, as described in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). DHS will only consider public benefits received on or after October 15, 2019 for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date. An alien defined by section 101(a)(15)(V) or 101(a)(15)(U) of the Act may be accorded nonimmigrant status in the United States by following the procedures set forth in 8 CFR 214.15(f) and 214.14, respectively."

8 CFR 214.1(a)(3)(iv) - extension of status

"(iv) Except where the nonimmigrant classification for which the alien seeks to extend is exempt from section 212(a)(4) of the Act or that section has been waived, as a condition for approval of extension of status, the alien must demonstrate that he or she has not received since obtaining the nonimmigrant status he or she seeks to extend one or more public benefits as defined in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). For the purposes of this determination, DHS will only consider public benefits received on or after October 15, 2019 for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date."

This is a "backward-looking" standard that looks only to whether "since obtaining the nonimmigrant status from which he or she seeks" to change or extend until the date USCIS adjudicates the COS or EOS application, the applicant received "one or more public benefits, as defined at new 8 CFR 212.21(b), "for more than 12 months in the aggregate within any 36-month period" before USCIS adjudicates the COS or EOS application. The enumeration of public benefits at 8 CFR 212.21(b) is a closed, exhaustive list, so USCIS should not consider receipt of benefits not on this list in its public charge determination for COS or EOS applicants.

USCIS will likely soon post revised versions of Form I-539/I-539A and Form I-129 to elicit the information it needs to make this determination for COS and EOS applicants. Note that the revised USCIS forms will ask both if the alien has received or is currently certified to receive (by the benefit-granting agency) any of these benefits. The forms will also ask for the date the alien started receiving the benefit, or if certified, the date the alien will start receiving the benefit, and the date the benefit ended or expires.

F-1 Reinstatement Applicants
It is unclear how, if at all, the new public charge rules will apply to F-1 reinstatement applicants. Although the final rule did not amend the F-1 reinstatement regulations, USCIS might apply the COS/EOS public charge determination to reinstatement applicants, since F-1 students also use Form I-539 to apply for reinstatement. USCIS could also consider a reinstatement applicant to be an "applicant for admission," and apply the more burdensome "more likely than not at any time in the future to become a public charge" standard. As with all reinstatement applications, the applicant would do best to retain experienced immigration counsel to represent them in the reinstatement application.

Applicants for Visas, Admission and Applicants for Adjustment of Status
While the public charge determination that USCIS will make in the context of an application for change or extension of nonimmigrant status is backward looking, in the following situations DHS and DOS must consider the totality of the circumstances and make a prospective, forward-looking determination of whether someone is likely at any time in the future to become a public charge as defined in 8 CFR 212.21 and 22 CFR 40.41.

The public charge ground of inadmissibility at INA 212(a)(4) [8 USC 1182(a)(4)] provides in general that:

"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."

DOS will apply this standard to applicants for immigrant visas and to applicants for nonimmigrant visas.

DHS will apply this standard to adjustment of status applicants, as well as to "applicants for admission" to the United States, which includes:

Applicants at a port of entry applying for admission to the United States as a nonimmigrant. A CBP officer at a U.S. port of entry usually makes these decisions.
New immigrants entering the United States on an immigrant visa. A CBP officer at a U.S. port of entry usually makes these decisions.
Lawful permanent residents returning to the United States after an absence of more than 6 months, since they are considered "applicants for admission." A CBP officer at a U.S. port of entry usually makes these decisions.
Other individuals who are considered "applicants for admission," including individuals who entered the United States without inspection (EWI). Inadmissibility determinations in these cases are made by DHS officers, with the particular DHS bureau (CBP, ICE, USCIS) depending on the context of DHS's encounter with the individual.
Definitions of "is likely at any time" to become a public charge
DHS regulations at 8 CFR 212.21(c):

(c) Likely at any time to become a public charge. Likely at any time to become a public charge means more likely than not at any time in the future to become a public charge, as defined in 212.21(a), based on the totality of the alien's circumstances.

DOS regulations at 22 CFR 40.41(a):

(a) Basis for determination of ineligibility ... When considering the likelihood of an alien becoming a public charge at any time through receipt of public benefits, as defined in paragraph (c) of this section, consular officers will use a more likely than not standard and take into account the totality of the alien's circumstances at the time of visa application, ...

Totality of the Circumstances
As mandated by the statute, DHS and DOS regulations require that public charge inadmissibility determinations consider at a minimum the alien's:

age;
health;
family status;
education and skills; and
assets, resources, and financial status.
Detailed provisions at 8 CFR 212.22(b) and 22 CFR 40.41 establish protocols for DHS and DOS officials to weigh each of these factors, as well as "the immigration status that the alien seeks and the expected period of admission as it relates to the alien's ability to financially support for himself or herself during the duration of the alien's stay" (DHS) and "the visa classification sought" (DOS).

For each factor listed at 8 CFR 212.22(b),the DHS regulation specifies a "standard," and also lists the primary types of evidence DHS will consider for the factor under that standard. The DHS rule at 22 CFR 40.41 combines the standard and examples in its provisions.

The DHS and DOS rules also identify positive and negative factors, and "heavily weighted" positive and negative factors, to guide DHS and DOS officers in weighing the factors present in an alien's case. The preamble to the DHS rule and the DOS rule itself clarify that no one enumerated factor alone will create a presumption that the alien is likely to become a public charge, but will focus on "the totality of the circumstances."

Example of a heavily weighted negative factor: actual receipt of public benefits, as described in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period.

Example of a heavily weighted positive factor: The alien has private health insurance appropriate for the expected period of admission. Note, however, that health insurance for which the alien receives subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act will not constitute a heavily weighted positive factor (although it does not appear to be a negative factor, either).

What about visa applications and inadmissibility/removal proceedings?
In the preamble to its final public charge rule, DHS states that "DHS is working with DOS to ensure that the Foreign Affairs Manual appropriately reflects the standards in this rule," and that "DOJ plans to conduct rulemaking to ensure that the standards applied in immigration court are consistent with the standards in this rule." DHS explains in the preamble:

"Three different agencies are responsible for applying the public charge ground of inadmissibility, each in a different context or contexts. DHS primarily applies the public charge ground of inadmissibility at ports of entry and when adjudicating certain applications for adjustment of status. This rule amends the standards applicable to those contexts, and also sets forth evidentiary requirements applicable to the adjustment of status context.

DOS Consular officers are responsible for applying the public charge ground of inadmissibility as part of the visa application process and for determining whether a visa applicant is ineligible for a visa on public charge grounds. This rule does not directly revise DOS standards or processes. DHS is working with DOS to ensure that the Foreign Affairs Manual appropriately reflects the standards in this rule.

DOJ is responsible for applying the public charge ground of inadmissibility in immigration court, where DHS may bring and prosecute the charge against certain inadmissible aliens. Immigration judges adjudicate matters in removal proceedings, and the Board of Immigration Appeals and in some cases the Attorney General adjudicate appeals arising from such proceedings. This rule does not directly revise DOJ standards or processes. DHS understands that the DOJ plans to conduct rulemaking to ensure that the standards applied in immigration court are consistent with the standards in this rule."

Also in the preamble to the final rule, DHS clarifies that the INA 212(a)(4)/8 USC 1182(a)(4) public charge ground of inadmissibility, which is the subject of this rulemaking, is different from the INA 237/8 USC 1227 public charge ground of deportability, which is not the subject of this DHS rulemaking:

"the INA also contains a separate public charge ground of deportability. This rule does not interpret or change DHS's implementation of the public charge ground of deportability."

Legal Advice
Public charge determinations usually arise in contexts outside the scope of direct international student and scholar advising duties (i.e., in the context of visa applications, adjustment of status, change of status, and extension of stay applications). While understanding the basic factors involved in public charge determinations is helpful, advisers should encourage students, scholars, and their families to consult an experienced immigration lawyer for assistance with their detailed questions and requests for immigration strategy support and representation.