Proposed Changes to Public Charge Determinations for Immigration Purposes
On October 10, 2018, the Department of Homeland Security published a proposed rule that would change how immigration agencies make determinations relating to the public charge ground of inadmissibility. The Immigration & Nationality Act prohibits foreign nationals from being admitted to the U.S. or being granted permanent residence if he or she "is likely at any time to become a public charge . . . ." and provides a list of factors to be weighed by the officer making the determination. INA §212(a)(4). The term "public charge" is not defined in the Act, but subsequent laws such as the Immigration Reform & Control Act of 1986 and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (welfare reform), as well as agency guidance, have provided a general structure for which applicants are subject to public charge determinations and how the statutory factors are taken into account.
This proposed rule defines the term "public charge," expands which applicants are subject to this determination, and changes how prior receipt of certain types of public assistance are treated. It also provides detailed guidance for how officers should weigh the various factors when making public charge determinations.
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This rule, which was open for public comment until December 10, 2018, will profoundly alter the immigration landscape for foreign national workers and their employers if adopted as currently written. Due to the nature of employment-based immigration in the U.S., most employers and foreign national employees have not had to worry about this ground of inadmissibility for either temporary workers or those they sponsor for permanent residence. Among the proposed changes, the following are the most significant for employers:
- Expansion of public charge determinations to applicants for extensions and changes of status. The proposed rule would enable USCIS to perform the public charge determination whenever an employee applies for a change (e.g., from F-1 student to H-1B professional) or extension of nonimmigrant status, by requiring applicants to submit an additional form with their applications. This also expands the scope of documents that USCIS may request, including W-2 statements, federal tax returns and even applicants' credit reports and scores.
- Expansion of public benefits that subject applicants to public charge determinations. Previously, noncash benefits not primarily intended to supplement income, such as CHIP (children's health insurance) and SNAP (food stamps) were not included. It is not uncommon for families to receive these benefits in connection with the birth of a child and under existing policy, such benefits are not considered when a public charge determination is made. The proposed rule would add these and other benefits to the list of those considered for public charge determinations, substantially expanding the range of individuals who could be found inadmissible.
Now that the comment period has closed, it will likely be several months until the final rule is published by DHS, and the effective date will likely be even later. Until then, it is important to note that the existing policies have not changed and are still in effect.
For more information on immigration rules and regulations, contact your local Quarles & Brady attorney or