Immigration Law Insights

The Department of Homeland Security (DHS) recently issued a new “public charge” final rule that will go into effect December 23, 2022. The new rule will apply to all permanent residency (Green Card) applications filed on or after the effective date. The new rule is a marked change from the strict President Trump-era public charge rule that spent several years in litigation and was ultimately withdrawn by the Biden administration.

Pursuant to the Immigration and Nationality Act, any noncitizen who, in the opinion of DHS, is likely at any time to become a “public charge” is inadmissible and therefore ineligible for a Green Card. The “new” rule codifies 1999 guidance followed by DHS prior to the Trump Administration. Under the rule, public charge continues to be defined as a Green Card applicant who “is likely at any time to become primarily dependent on the government for subsistence.” Importantly, public assistance is required to supplement the beneficiary’s main source of income—it does not include a benefit that is used to temporarily improve an individual’s financial situation.

Under the new rule, DHS must consider the totality of the circumstances in conducting the public charge assessment. No single factor is controlling in determining the likelihood of needing public assistance. The factors to be considered include, but are not limited to: age, health (determined by medical exam), assets, resources, financial status, family status (household size), education, skills, and any affidavit of support.

When reviewing an individual’s past or current receipt of public benefits, DHS must again consider the totality of the circumstances, to include the amount, duration, and recency of assistance received. Current or past receipt of benefits alone is, in and of itself, insufficient to support a denial.

Public programs that could negatively affect an applicant are those involving public cash assistance for income maintenance (such as Supplemental Security Income, Temporary Assistance for Needy Families, and State and Local “General Assistance” programs) and Medicaid or other long-term institutionalized care programs. The new rule specifically exempts disaster relief, such as pandemic relief measures, tax credits and stimulus checks. Housing programs and unemployment benefits also do not affect the public charge analysis. Additionally, a family member’s use of benefits will not impact the applicant. Adjudicators will be required to provide a detailed summary of denial reasoning and demonstrate that all factors were considered in their decision.

Importantly, the new charge rule will not apply to current legal permanent residents, Green Card renewals, or naturalization applications. In addition, some immigration categories, such as asylees and refugees, are altogether exempt. DHS is expected to issue an updated Form I-485 to address the new public charge rule by December 23, 2022.

Moving forward, Green Card sponsors, applicants, and counsel should work closely to assess public charge issues prior to commencing the permanent residency process. Proper strategy can save employers considerable amounts of money, given the public charge issue is unlikely to be raised by DHS until the final step in the Green Card process.

Burr & Forman’s immigration team works with employers and Green Card beneficiaries to develop creative and successful immigration strategies. If your business has questions regarding permanent residency sponsorship, contact Jonathan C. Eggert (JEggert@burr.com), Melissa Azallion Kenny (MAKenny@burr.com), or Anna L. Scully (AScully@burr.com) on the Burr & Forman LLP immigration team.