Public Charge Changes at USCIS, DOJ, and DOS

From the Congressional Research Service:

Immigration law in the United States has long contained exclusion and removal provisions designed to limit government spending on indigent non-U.S. nationals. Under the INA, an individual may be denied admission into the United States or adjustment to lawful permanent resident (LPR) status if he or she is "likely at any time to become a public charge." An admitted individual may also be subject to removal from the United States based on a separate public charge ground of deportability, but this ground is rarely employed. Certain categories of individuals, such as refugees and asylees, are currently exempted from application of the public charge grounds.

DHS and DOS have primary responsibility for implementing the INA's public charge provisions. USCIS may make a public charge determination when an individual applies to adjust to LPR status. Abroad, DOS consular officers may make a public charge determination when an individual applies for a visa.

Although the INA does not explicitly define the term "public charge," since 1999, agency guidance has defined it to mean a person who is or is likely to become "primarily dependent" on "public cash assistance for income maintenance" or "institutionaliz[ed] for long-term care at government expense."

However, new public charge rules for DHS and DOJ are expected to be published in the Federal Register, according to the Unified Agenda of the Office of Management and Budget (OMB). In addition, in January 2018, DOS revised the Foreign Affairs Manual (FAM) to instruct consular officers to consider a wider range of public benefits when determining whether visa applicants who have received or are currently receiving benefits are inadmissible on public charge grounds.

• USCIS Efforts to Change Public Charge Rules
• DOJ Efforts to Change Public Charge Rules
• DOS Efforts to Change Public Charge Rules

USCIS Efforts to Change Public Charge Rules

Government Announcements

• White House Issues Memo Ordering Strict Enforcement of Sponsor-Reimbursement Laws - May 23, 2019
• USCIS Notice of Proposed Rulemaking on Public Charge Ground of Inadmissibility (83 FR 51114, 10/10/18)
• USCIS Provides Background Information and FAQs on Proposed Change to Public Charge Ground of Inadmissibility - October 16, 2018
• DHS Announces New Proposed Immigration Rule on Public Charge - September 22, 2018
• CRS Issues FAQs on "Public Charge" - September 19, 2018

Attorney Resources

• ILRC: Totality of the Circumstances: Assessing the Public Charge Ground of Inadmissibility - May 3, 2019
  
  • This advisory provides an overview of how adjudicators have applied the "totality of the circumstances" test in the public charge context to help advocates best counsel their clients and prepare applications in this climate of uncertainty.
• Practice Pointer: T Visa Adjustment of Status and the Public Charge Ground of Inadmissibility - May 2, 2019
• New York Immigration Coalition Practice Advisory: Counseling Clients on Public Charge and Public Benefits - December 1, 2018
• National Immigration Forum: Fact Sheet - Immigrants and Public Benefits - August 21, 2018

Advocacy Resources

• American Immigration Council's Immigration Impact: Proposed 'Public Charge' Regulation Draws Hundreds of Thousands of Comments - December 11, 2018
• AILA and the Council Submit Comment Opposing the Proposed Public Charge Rule - December 10, 2018
• CHC Members Submit Comments Opposing the Public Charge Proposed Rule - December 10, 2018
• Think Immigration: Proposed Public Charge Rule Spreads Panic, But Would Fail at Cutting Costs - October 11, 2018
• AILA Quicktake #252: The Trump Administration's Proposed Public Charge Rule - September 24, 2018
• Talking Points - How to Explain the Public Charge Rule to Clients, Reporters, and Members of the Public - September 24, 2018
• AILA Press Release - New Rule Would Impose Class-Based Limits on Immigration, Bringing Harm to Hardworking Families - September 24, 2018
• CATO Institute: New Rule to Deny Status to Immigrants Up to 95% Self-Sufficient - September 24, 2018
• CLINIC: USCIS Proposes Vast Changes to Public Charge Definition - September 23, 2018

Media Resources

• Article: Undocumented Parents Scared to Enroll Citizen Children in Benefits, Say Experts - December 21, 2018
• Vox: Trump is proposing a regulation that could change the face of legal immigration - by restricting low-income immigrants - December 10, 2018
• The New Yorker: Trump's Public-Charge Rule Is a One-Two Punch Against Immigrants and Public Assistance - September 28, 2018

DOJ Efforts to Change Public Charge Rules

• Reuters: Exclusive: Trump administration proposal would make it easier to deport immigrants who use public benefits - May 3, 2019
• Politico reports that the Justice Department plans to propose a regulation detailing when legal immigrants could be deported for receiving certain government benefits, according to new background info from DHS. The proposal deals with immigrants already admitted to the U.S., including legal immigrants with green cards - September 26, 2018

DOS Efforts to Change Public Charge Rules

Government Announcements

• DOS Issued Cable on Update to 9 FAM 302.8 Public Charge - January 4, 2018

Attorney Resources

• Friday FAM on Public Charge Grounds of Inadmissibility
• Call for Examples: Visa Refusals Based on Public Charge
• Call for Examples: Revocation of I-601A Approvals Based on a Public Charge Finding
• AILA, CLINIC, and NILC Provides Update on FAM Changes to Public Charge - September 12, 2018
• Practice Alert: Public Charge Denials in Ciudad Juarez - June 25, 2018

Advocacy Resources

• AILA, CLINIC, and NILC Express Concerns Over Improper Public Charge Determinations and I-601A Revocations - August 28, 2018
• The National Immigration Law Center Provides Fact Sheet on Changes to "Public Charge" Instructions in the DOS FAM

Litigation Resources

• City of Baltimore Files Lawsuit Challenging DOS Change to Foreign Affairs Manual on Public Charge Ground of Inadmissibility (Baltimore v. Trump, 11/28/18)

Cite as AILA Doc. No. 19050634.