USCIS Formally Proposes New Public Benefits Rule that Will Hinder Admissibility to U.S.

On October 10, 2018, USCIS published a proposed rule that would expand the definition of “Inadmissibility on Public Charge Grounds,” which is intended to determine whether a foreign national is inadmissible because he or she is likely at any time to become a public charge. Having received cash benefits from the United State is currently a consideration in this equation. However, under the proposed rule, an individual having received noncash benefits, including Medicaid, Supplemental Nutrition Assistance Program (SNAP), housing vouchers, or rent subsidies could potentially be considered a “public charge.” The proposed rule cites that individuals, not their family members, who receive one or more of these benefits with a combined value of at least 15 percent of federal poverty guidelines (i.e., roughly $1,800 a year, or $150 a month) could be deemed a “public charge.” These are benefits for which foreign nationals are eligible, but now it appears they will be penalized if they avail themselves of these benefits.

DHS’s rule cites a chart of the “Totality of Circumstances Framework for Public Charge Determinations,” which explains the potential weight given to the factors of age, health, family status, assets, resources, and financial status. Thus, for example, an older person with a chronic health condition requiring substantial health resources might be considered to have more negatively weighted factors and might therefore be deemed inadmissible.

The Department of State (DOS) had already begun to scrutinize individuals applying for green cards under the public charge bar in a similar fashion. DOS looks beyond the affidavit of support to a person’s age, health, family situation, income, resources, education, skills, and the use of noncash benefits by applicants, sponsors, and family members, including U.S. citizen children. DOS now requires a consular officer to use this detailed determination to consider the totality of the person’s circumstances.

Notice and Comment Period: The public has until December 10, 2018 (60 days) to comment on the proposed rule. To view the proposed rule and/or to comment, you may do so at https://www.regulations.gov.