Recent Changes to Those Applying for Green Cards: An Overview of the New Public Charge Rule

Introduction

On September 9, 2022, the Department of Homeland Security (DHS) issued the final

rule, pursuant to Immigration and Nationality Act (INA) §212(a)(4), with respect to the public

charge ground of inadmissibility. The rule went into effect on December 23, 2022

The new rule provides definitional and procedural guidance to assist USCIS adjudicators

in properly evaluating whether a person is likely to become a public charge and, importantly,

expressly clarifies that it does not apply to nonimmigrants. This can affect those applying for

green cards in the United States. USCIS has issued a revised Form I-485, Application to

Register Permanent Residence or Adjust Status, to collect additional information, including

questions related to the public charge statutory factors. 

Who is likely to become a Public Charge?

An applicant is a public charge only when they are likely at any time to be “primarily

dependent” on the government for subsistence or long-term institutionalized care at the

government’s expense. According to the preamble to the final rule, primarily dependent

“connotes significant reliance on the government for support, and means something more than

dependence that is merely transient or supplementary.” Benefits to family or household

members, which would be disqualifying if received by the immigrant, are not a factor even if the

applicant applied for those benefits on that person’s behalf.

How will Public Charge be considered in the totality of the circumstances?

Consistent with the 1999 Interim Field Guidance, DHS will consider the totality of the

circumstances to determine whether an applicant might become a public charge, looking only at

“statutory factors,” an Affidavit of Support where required, and the current/past receipt of

covered government benefits. The rule indicates that other than a sufficient Affidavit of Support

(Form I-864) if required, no one factor “should be the sole criterion for determining if [a

noncitizen] is likely to become a public charge.” The rule also provides that a sufficient Affidavit

of Support will (as opposed may) be a favorable factor in this analysis. Thus, when an Affidavit

of Support is required, it is likely to be the starting point in any public charge review.

How will the “minimum statutory factors” be considered under the Final Rule?

Under INA §212(a)(4), DHS must “at minimum” consider the noncitizen’s: age; health;

family status; assets, resources, and financial status; and education and skills. The final rule

contains definitions of all of these factors except age. DHS has noted that the totality of the

circumstances review “must be individualized and based on the evidence presented in the

specific case, and the relative weight of each factor and associated evidence is necessarily

determined by the presence or absence of specific facts.”

Health

Health may be the most developed of the minimum factor definitions, perhaps because of

the interplay of noncitizen health circumstances, public benefit programs, and sensitivity around

the disclosure of health information. The final rule states that adjudicators will defer to a medical

exam from a civil surgeon or panel physician (when required) absent evidence that the report is

incomplete. The medical exam is used to screen for the potential health-related inadmissibility

grounds found in INA §212(a)(1). Note that the final rule indicates a disability is “not alone ... a

sufficient basis to determine whether the [noncitizen] is likely at any time to become a public

charge.”

Family Status

Family Status, as defined in the Final Rule, is determined based on household size and includes:

1. The noncitizen;

2. The noncitizen’s cohabiting spouse;

3. The noncitizen’s cohabiting parents, unmarried siblings under 21, and the

noncitizen’s children as defined by INA §101(b)(1) (the definition of a child for

immigration purposes includes a child born in wedlock, a child born out of

wedlock, legitimated child, stepchild, adopted child, orphan, and Convention

adoptee);

4. Any other individuals (including a spouse or child not residing with the noncitizen)

included as a dependent on the noncitizen’s tax return, and;

5. Any other individuals who list the noncitizen as a dependent on their federal tax

return.

Assets, Resources, and Financial Status

The noncitizen’s assets, resources, and financial status factor is defined as the

noncitizen’s “household income, assets, and liabilities (excluding any income from public

benefits listed in §212.21(b) and income or assets from illegal activities or sources such as

proceeds from illegal gamily or drug sales).” There are a few things to analyze in this definition.

First and foremost, it refers to the household as defined by proposed 8 CFR §212.21(f). Second,

the calculation includes income and assets and consideration of outstanding liabilities.

Education and Skills

The noncitizen’s education and skills factor is defined as their “degrees, certifications,

licenses, skills obtained through work experience or educational programs, and educational

certificates.”

What government benefits may be considered under the Final Rule?

The final rule’s definition of the benefits that would be considered under the totality of

circumstances test clarifies that they must be benefits actually received by the noncitizen

applicant. The noncitizen’s mere application or approval for a benefit (if not received) is not

considered. Benefits include those provided by any Federal, State, tribal, territorial, or local

government entity of the U.S. The final rule also defines “public cash assistance for income

maintenance” to include only Supplemental Security Income (SSI), cash assistance for income

maintenance under the Temporary Assistance for Needy Families (TANF)  and non-Federal

“cash benefit programs for income maintenance (often called “General Assistance” in the State

context, but which also exist under other names).

Who are the noncitizens subject to the Final Rule?

The final rule will impact only applicants for admission or USCIS applications for

adjustment of status. 

For further information or questions you may have, please do not hesitate to contact The

Law Offices of Michael H. Markovitch.