Public Charge Rule Implementation: What to Look Out For

A new public charge rule, proposed by the U.S. Department of Homeland Security, will go into effect on February 24, 2020. Previously, the rule had been blocked from going into effect by three different federal judges on October 11, 2019. However, as of January 30, 2020, the Supreme Court recently ruled in favor to allow the current administration to implement the regulations of the public charge rule. The only state that remains exempt from this ruling is the State of Illinois, where a statewide injunction has held off the implementation of the public charge rule. Meanwhile, lower courts continue to challenge the merits of the public charge rule.

The public charge rule applies only to certain adjustment of status applicants, as well as to nonimmigrants looking to change their status or extend their stay. Public charge is defined as someone who receives one or more “public benefits” for more than 12 months in the aggregate within a 36-month period. Receipt of two benefits in the same month are counted as two months. Public benefits may include: supplemental security income; Temporary Assistance for Needy Families (TANF); any federal, state, local or tribal cash assistance for income maintenance; Medicaid (with limited exceptions); Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps); any benefits related to institutionalization for long-term care at government expense; Section 8 Housing Choice Voucher Program and Rental Assistance Program; and/or public housing.

On February 24, 2020, there will also be an issuance of new forms in relation to the public charge rule. Form I-944, Declaration of Self-Sufficiency, will be required on or after February 24, 2020, in addition to the I-864 Affidavit of Support for adjustment of status applicants. Although the final version of the Form I-944 is not out yet, draft versions of the Form I-944 focus on household income and assets, debts and liabilities, credit history, use of public benefits, education level, employment history, and health insurance.

The public charge analysis will be based on an applicant’s totality of circumstances, including age, poor health, lack of private health insurance, low credit score, debt, English proficiency, lack of education and/or work history.

The public charge rule will not be retroactive; instead, it will only apply to those public benefits received on or after February 24, 2020.

If you have an adjustment case pending with us or are interested in learning more about this proposed rule or if it would apply to you, feel free to contact our office at 713-589-2085 or email us at [email protected] to set up a consultation.

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