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A Brief Analysis of the Department of Homeland Security's "Public Charge" Proposed Regulations

October 18, 2018

On October 10, 2018, the Department of Homeland Security (DHS) issued a proposed rule in the Federal Register suggesting changes to the "public charge" rules and how these rules would affect nonimmigrants and immigrants seeking admission to the United States.

Public charge is a category used to determine whether someone applying for a green card or temporary work visa in the United States is likely to become primarily dependent on the federal, state or local government for subsistence, and is grounds to bar such individuals from entry to the United States. This proposed rule, if finalized, will make it more difficult for people who have received public benefits to become permanent residents, obtain temporary work visas or extend or change their nonimmigrant visa status.

In the past, foreign nationals have been determined to be at risk of being defined as a public charge if they accepted certain government-funded cash benefits such as Temporary Assistance for Needy Families, Supplemental Security Income or federal help paying for long-term care. Under the updated regulations, officials would consider the use of certain previously excluded programs, including Medicaid, the Supplemental Nutrition Assistance Program, the Medicare Part D low-income subsidy program and several housing programs.

The regulations also expand the definition of who must meet the public charge test to include those who are seeking to extend their temporary visas and those who wish to change from one visa to another. A returning permanent resident could also likely become a public charge while attempting to reenter the United States at an airport, even if that resident has never before used public benefits, due to factors such as the person's income and/or financial status.

Although DHS suggests that the proposed rule is intended to promote "self-sufficiency," it seems that these changes will have the harshest effect on lower-income individuals. Foreign nationals and their children may drop out of or forgo enrollment in benefit programs for which they are eligible out of fear of the immigration consequences - even if the benefit program would have no impact on a public charge finding. The proposed rule also mandates consideration of factors including age, employment, skill and adverse physical or mental health.

A further consideration relates to permanent residents entering the United States and the risk that a determination made by customs and border officers at ports of entry that such individuals could soon become dependent on public benefits. The individual who might be deemed to potentially rely on public benefits could be charged with inadmissibility to the United States and would have to contest a public charge determination before an immigration judge.

The proposed rule also mandates that an applicant's skills and education are further "mandatory statutory factors to be considered when determining whether an alien is likely to become a public charge in the future." Age would also be considered, with the very young and elderly at risk for negative public charge determinations.

The proposed rule is now published in the Federal Register. Those with concerns may send in comments until December 10 when the rule is to be finalized.

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