Proposed Rule: Public Charge Ground of Inadmissibility
The U.S. Department of Homeland Security (DHS) has announced a Notice of Proposed Rulemaking (NPRM) on the public charge ground of inadmissibility that would help reduce fear and confusion among immigrant communities and U.S. citizens, leading to fair and consistent adjudications for those seeking admission at ports of entry or adjustment of status to that of a lawful permanent resident inside the United States. The proposed rule will have a 60-day public comment period that begins on the date specified in the forthcoming Federal Register notice.
Background
Since March 9, 2021, DHS has been applying the public charge ground of inadmissibility consistent with the 1999 Interim Field Guidance, the policy that was in place for two decades before the 2019 public charge final rule was implemented. DHS removed references to the 2019 public charge final rule from the Code of Federal Regulations after a federal court order vacating the rule went into effect on March 9, 2021.
The publication of the new NPRM does not change how DHS is currently applying the public charge ground of inadmissibility. Until DHS publishes a new final rule and implements any such new regulations, U.S. Citizenship and Immigration Services will continue to apply the public charge ground of inadmissibility consistent with the 1999 Interim Field Guidance, the policy that was in place for two decades before the 2019 public charge final rule was implemented.
Proposed Rule
DHS proposes to prescribe how it will determine whether a noncitizen seeking admission at a port of entry or adjustment of status to that of a lawful permanent resident in the United States is inadmissible under section 212(a)(4) of the Immigration and Nationality Act because they are “likely at any time to become a public charge.” Under this proposed rule, a noncitizen would be considered likely at any time to become a public charge if they are likely at any time to become “primarily dependent on the government for subsistence,” as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.
Under the proposed rule, DHS would only consider the following public benefits when making a public charge inadmissibility determination:
- Supplemental Security Income (SSI);
- Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program;
- State, Tribal, territorial, and local cash assistance for income maintenance; and
- Long-term institutionalization at government expense.
DHS would not consider noncash benefits like food nutrition assistance programs such as Supplemental Nutrition Assistance Program (or its predecessor program, food stamps), the Children’s Health Insurance Program, most Medicaid benefits (except for long-term institutionalization at government expense), housing benefits, and transportation vouchers. Additionally, DHS would not consider disaster assistance received under the Stafford Act; benefits received via a tax credit or deduction; or Social Security, government pension, or other earned benefits.
Most noncitizens who are eligible for public benefits are not subject to the public charge ground of inadmissibility. Moreover, the proposed rule would generally not affect noncitizens who have already become lawful permanent residents (LPRs). LPRs are generally not subject to public charge inadmissibility determinations.
Additionally, the proposed rule includes a list of the categories of noncitizens who are exempt from the public charge ground of inadmissibility under existing statutes and regulations, in order to better ensure that the public understands which applicants for admission and adjustment of status are exempt. Some categories of noncitizens exempt from the public charge ground of inadmissibility are refugees, asylees, noncitizens applying for or reregistering for temporary protected status, special immigration juveniles, T and U nonimmigrants, and self-petitioners under the Violence Against Women Act.
The proposed rule also describes the groups of noncitizens who are eligible to apply for a waiver of the public charge ground of inadmissibility, as permitted by existing statutes and regulations. DHS also proposes to exclude from consideration the receipt of public benefits by noncitizens who received those benefits while in an immigration category that is exempt from the public charge ground of inadmissibility and by noncitizens who, while not refugees admitted under section 207 of the Act, are eligible for resettlement assistance, entitlement programs, and other benefits available to refugees admitted under section 207 of the Act.
To Submit Comments
The proposed rule will have a 60-day public comment period that begins on the date specified in the forthcoming Federal Register publication. You may submit comments through Regulations.gov under docket number USCIS-2021-0013. Please follow the instructions for submitting comments. DHS may not review comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials.
DHS will carefully review public comments before publishing any subsequent public charge final rule. We are committed to providing opportunities for meaningful feedback and we encourage you to take advantage of the opportunity. Any final rule DHS issues as a result of this proposal will be coupled with a comprehensive communications strategy that makes clear which groups of noncitizens are subject to the rule, which are exempt, and how the final rule will affect public charge inadmissibility determinations for applicants for admission or adjustment of status. This strategy will include outreach to immigrant communities and those representing them.
Additional Information
DHS drafted the NPRM after considering comments on the Advance Notice of Proposed Rulemaking (ANPRM) (published on Aug. 23, 2021), and feedback provided during public listening sessions. These efforts sought to better ensure a proposed rule that does not cause undue fear among immigrant communities or present other obstacles to immigrants and their families, including U.S. citizens, from accessing public services legally available to them, particularly considering the COVID–19 pandemic and the resulting long-term public health and economic impacts in the United States.
Please visit our public charge resources page for more information, including a comprehensive list of answers to common questions from the immigrant community and benefit-granting agencies.
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