Featured Issue: 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."

Updates

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. In August, 2019, Politico reported on immigrant visa denials because the individual might become dependent on government benefits, finding that, "The number of public charge denials for applicants from all nations also rose during the past year. Preliminary data obtained by POLITICO shows 12,179 visa rejections on public charge grounds through July 29 — which puts the department on pace to surpass last year’s total. The State Department disqualified only 1,033 people on public charge grounds in fiscal 2016. Public charge denials have increased in recent years as the State Department has issued fewer immigrant visas overall."

On August 12, 2019, USCIS published an advance copy of the final rule on inadmissibility on public charge grounds. The final rule will be effective at 12:00 am (ET) 60 days after the date of publication in the Federal Register. The notice stated that applications and petitions already pending with USCIS on the effective date of the rule will not be subject to the rule. The final rule will be published in the Federal Register on August 14, 2019. Stay tuned for more resources.

A new public charge rule for DOJ is expected to be published in the Federal Register, according to the Unified Agenda of the Office of Management and Budget (OMB).

USCIS Efforts to Change Public Charge Rules

Government Announcements

Attorney Resources

Litigation

Advocacy Resources

Media Resources

DOJ Efforts to Change Public Charge Rules

DOS Efforts to Change Public Charge Rules

  • Politico: Exclusive: Visa denials to poor Mexicans skyrocket under Trump’s State Department - August 6, 2019
      "Between Oct. 1 and July 29, the State Department denied 5,343 immigrant visa applications for Mexican nationals on the grounds that the applicants were so poor or infirm that they risked becoming a “public charge,” according to the statistics. That’s up from just seven denials for Mexican applicants in fiscal year 2016, the last full year under former President Barack Obama."

Government Announcements

Attorney Resources

Advocacy Resources

Litigation Resources

Cite as AILA Doc. No. 19050634.