Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

11 Broadway, Suite 615
New York, NY 10004

(212) 430-6582 phone
(212) 430-6583 facsimile

Proposed Rule Impacts Public Charge Considerations

The administration, through the Department of Homeland Security, has released a proposed rule seeking to expand the types of government assistance that are counted against a potential applicant for a nonimmigrant visa or for a green card.

Where previously only direct cash assistance was counted, the proposed rule would include basic health care support, nutrition assistance, and various other critical services in determinations of whether someone is subject to the “public charge” ground of inadmissibility – the provision of law saying that an individual is inadmissible to the US if they will likely require public assistance. An earlier version of this rule was leaked to the press in early August (we wrote about it here).

Historically, in the context of family-sponsored matters, a signed Affidavit of Support – a pledge from the petitioner and sometimes others to reimburse the government in the event assistance was needed – had been sufficient to overcome the public charge ground of inadmissibility absent receipt of cash support. The current administration has been moving to change this, with changes several months ago to the US State Department’s Foreign Affairs Manual (“FAM”) instructing consular officers to look outside of the Affidavit of Support to a variety of other factors. The proposed rule would specifically make receipt of non-cash assistance in the 36 months before the application a barring factor once the rule goes into effect.

Among the biggest concerns is that the rule will discourage immigrant populations from applying for needed medical or nutritional assistance, causing direct harm to the health of children and families.

The published proposed rule does contain some exemptions — participation in the Women, Infants and Children nutrition program and the Children’s Health Insurance Program (“CHIP”) would be excluded from consideration. In addition, there are exemptions for refugees and asylum seekers as well as for minors with Special Immigrant Juvenile (“SIJ”) status, a category where children in the US can obtain permanent residence if abused, neglected, or abandoned by one or both parents. As mentioned above, aid received more than 36 months before the application for a nonimmigrant visa or green card is made isn’t counted, nor is anything received before the effective date of the rule whenever that may be.

As with the earlier leaked version, it’s just a proposal. Once published in the Federal Register, there would be a 60-day comment period. Then a final rule would then need to be issued – which may or may not be the same as the published proposed rule.