DHS Publishes Final Rule Clarifying Public Charge Inadmissibility

DHS Publishes Final Rule Clarifying Public Charge Inadmissibility

The U.S. Department of Homeland Security (DHS) has announced a final rule on the public charge ground of inadmissibility that will help reduce fear and confusion among immigrants and U.S. citizens and ensure fair and consistent adjudications for those seeking admission at ports of entry or adjustment of status to lawful permanent resident inside the United States. “This action ensures fair and humane treatment of legal immigrants and their U.S. citizen family members,” said Secretary of Homeland Security Alejandro N. Mayorkas. “Consistent with America’s bedrock values, we will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.”

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 on March 9, 2021, after a federal court order vacating the rule went into effect. DHS received approximately 220 comments after publishing the Notice of Proposed Rulemaking. DHS also obtained early feedback through listening sessions and an Advance Notice of Public Rulemaking. DHS carefully considered all public comments and feedback before publishing a final rule. Many of these comments emphasized the importance of limiting the previously widespread disenrollment in public benefits by noncitizens and their family members, even those who were not subject to the public charge ground of inadmissibility.

Final Rule Overview Under the rule, which is effective 105 days after it is published in the Federal Register, a noncitizen would be considered likely at any time to become a public charge if DHS determines that they are likely at any time to become primarily dependent on the government for subsistence. This determination will be based on:

•The noncitizen’s “age; health; family status; assets, resources, and financial status; and education and skills,” as required by the INA;

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•The noncitizen’s filing of Form I-864, Affidavit of Support Under Section 213A of the INA, submitted on a noncitizen’s behalf when one is required; and

•The noncitizen’s prior or current receipt of Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy

Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense. Most noncitizens who are eligible for public benefits are not subject to the public charge ground of inadmissibility. The final rule would generally not affect noncitizens who have already become lawful permanent residents, as they are generally not subject to public charge inadmissibility determinations. Some categories of noncitizens are exempt from the public charge ground of inadmissibility, including 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 rule includes a list of the categories exempted by Congress from the public charge ground of inadmissibility.

Additional Information
DHS will develop a Policy Manual update to help USCIS officers apply this regulation fairly and consistently and to better inform the public about how the rule will be implemented. DHS will also conduct public outreach and engagements to minimize the risk of confusion or chilling effects among both noncitizens and U.S. citizens.

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