Inadmissibility on Public Charge Grounds Final Rule
On Feb. 24, 2020, USCIS is implementing the Inadmissibility on Public Charge Grounds final rule nationwide, including in Illinois. USCIS will apply the final rule to all applications and petitions postmarked (or, if applicable, submitted electronically) on or after that date. For applications and petitions sent by commercial courier (for example, UPS, FedEx, or DHL), the postmark date is the date reflected on the courier receipt. USCIS will reject any affected application or petition that does not adhere to the final rule, including those submitted by or on behalf of aliens living in Illinois, if postmarked on or after Feb. 24, 2020.
Self-sufficiency has long been a basic principle of U.S. immigration law since our nation’s earliest immigration statutes. Since the 1800s, Congress has put into statute that aliens are inadmissible to the United States if they are unable to care for themselves without becoming public charges. Since 1996, federal laws have stated that aliens generally must be self-sufficient. On Aug. 14, 2019, DHS published a final rule regarding how DHS determines if someone applying for admission or adjustment of status is likely at any time to become a public charge.
This final rule also requires aliens seeking to extend their nonimmigrant stay or change their nonimmigrant status to show that, since obtaining the nonimmigrant status they seek to extend to change, they have not received public benefits (as defined in the rule) over the designated threshold.
The Statutory Basis of the Inadmissibility on Public Charge Grounds Final Rule
The primary immigration law today is the Immigration and Nationality Act of 1952 (the INA, or the Act), as amended.
Section 212(a)(4) of the INA (8 U.S.C. § 1182(a)(4)): “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible[…] In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s-(I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills . . . .”
Section 213 of the INA (8 U.S.C. § 1183): “An alien inadmissible under [section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4)] may, if otherwise admissible, be admitted in the discretion of the Attorney General (subject to the affidavit of support requirement and attribution of sponsor’s income and resources under section 1183a of this title) upon the giving of a suitable and proper bond . . . .”
Section 214(a)(1) of the INA (8 U.S.C. § 1184(a)(1)): “The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe, including when he deems necessary the giving of a bond with sufficient surety in such sum and containing such conditions as the Attorney General shall prescribe, to insure that at the expiration of such time or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 1258 of this title, such alien will depart from the United States.”
Section 248(a) of the INA (8 U.S.C. § 1258(a)): “The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status and who is not inadmissible under section 1182(a)(9)(B)(i) of this title (or whose inadmissibility under such section is waived under section 1182(a)(9)(B)(v) of this title) . . . .”
8 U.S.C. § 1601 (PDF)(1): “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”
8 U.S.C. § 1601 (PDF)(2)(A): “It continues to be the immigration policy of the United States that – aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”
8 U.S.C. § 1601 (PDF) (2)(B): It is also the immigration policy of the United States that “the availability of public benefits not constitute an incentive for immigration to the United States.”
The DHS Inadmissibility on Public Charge Grounds Final Rule
Timeline of the Rule’s Implementation
On Aug. 14, 2019, the U.S. Department of Homeland Security (DHS) published the Inadmissibility on Public Charge Grounds final rule that codifies regulations governing the application of the public charge inadmissibility grounds. See section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).
On Oct. 2, 2019, DHS issued a corresponding correction document, which contains provisions that are effective as if they had been included in the final rule published on Aug. 14, 2019.
On Oct. 10, 2018, DHS issued a Notice of Proposed Rulemaking, which was published in the Federal Register for a 60-day comment period. DHS received and considered over 266,000 public comments before issuing the final rule. The final rule provides summaries and responses to all significant public comments.
The Purpose of the Rule
The final rule enables the federal government to better carry out provisions of U.S. immigration law related to the public charge ground of inadmissibility.
The final rule clarifies the factors considered when determining whether someone is likely at any time in the future to become a public charge, is inadmissible (under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4)) and, therefore, ineligible for admission or adjustment of status.
The final rule also requires aliens in the United States who have a nonimmigrant visa and seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification to demonstrate, as a condition of approval, that they have not received, since obtaining the status they seek to extend or change, public benefits for more than 12 months, in total, within any 36-month period.
The final rule does not create any penalty or disincentive for past, current or future receipt of public benefits by U.S. citizens or aliens whom Congress has exempted from the public charge ground of inadmissibility.
The rule in its entirety and other relevant information can be found at the USCIS Website.