6 March 2020

Following a recent US Supreme Court decision, both the US Department of Homeland Security and the US Department of State began implementing new public charge rules as of 24 February 2020. The new rules place a renewed focus on ensuring foreign nationals will not become a public charge once they move to the US.

The new public charge rules provide that immigrants will no longer be eligible for permanent residency (ie, a green card) if they are likely to rely on public benefits in the future, and in some cases nonimmigrants who are applying to extend or change their status will be required to prove that they have not used certain public benefits. Most immigrants applying for a green card on the basis of a petition filed by an employer or a US citizen or permanent resident family member are subject to the new public charge rule. The new rules are likely to reduce the number of immigrant visas issued and deter immigrants from seeking necessary public benefits and services.

The new rules were originally intended to come into force in October last year, but implementation was enjoined by a number of courts. Last month, a 5-4 US Supreme Court decision has paved the way for the rules to be implemented.

Not all foreign nationals are impacted by the new rules: certain groups, such as refugees, asylees, U-visa holders, and T-visa holders are exempt.

Nevertheless, the effects of the rules could be immense because the rules afford the administration broad discretion to refuse nonimmigrant petitions or immigrant visa applications if they believe a person is likely to receive any number of public benefits for more than an aggregate of 12 months over any 36-month period of time. Benefits are counted individually, meaning that for an immigrant receiving two benefits per month, these are counted as two months. Receipt of federally-funded Medicaid benefits, the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.

The receipt of public benefits is only one factor to be considered when assessing whether an applicant is likely to become a public charge, with other factors being “heavily weighted,” both positive and negative. Immigrants are now required to disclose more information about their health, household size, education history, employment history, salary, credit score and access to private health care to immigration officers. Moreover, the financial resources requirements are demanding; one of the “heavily weighted” positive factors is that immigrants must have a household income of at least 250% of the federal poverty level.

The new rule could substantially reduce the issuance of new green cards. Research has revealed that nearly eight in ten noncitizens who originally entered the US without permanent resident (green card) status have at least one characteristic that DHS could weigh negatively and over one in four has a heavily weighted negative characteristic.

While the public charge rule itself is not new, the new amendments to it are. Previously an immigrant could be declared inadmissible if he was likely to become primarily dependent on the government for income support. The threshold to become a public charge has now been substantially lowered. Importantly, the Trump administration has already been refusing unprecedented numbers of immigrants under the old public charge rule. While only 1,033 people were rejected on public charge grounds in fiscal year 2016 under the Obama administration, the Department of State refused more than 12,000 visa applicants on this basis last year.