On September 8, 2022, United States Citizenship and Immigration Services (USCIS) announced its long waited public charge rule. As outlined in our previous alert, in March 2021, USCIS rescinded its public charge rule, which was widely known as a “Wealth Test,” and deterred many family-based applicants from applying for lawful permanent residence. The previous public charge rule considered public health benefits such as Medicaid and nutritional assistance as part of the public charge inadmissibility determination test. The new rule will become effective on December 23, 2022. 
 
Significantly, the new rule restores consistency in the application of the public charge rule based on historical understanding of the concept of public charge. The new rule codifies USCIS’ public benefits policy under its 1999 Interim Final Guidance. Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an applicant for immigration benefits may be considered inadmissible for permanent residence in the U.S. if USCIS concludes that the applicant is “likely at any time to become a public charge.” Becoming a “public charge” generally means that the applicant for immigration benefits is likely to become primarily dependent on the government for subsistence after obtaining lawful permanent residence in the U.S.
 
Under the new rule, USCIS will make public charge determinations based on the following three factors:

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

The new Public Charge Rule’s highlights include:

  Benefits received by family members other than the applicant will not be considered in public charge determinations; and
  Receipt of the following non-cash benefits will not be considered in public charge determinations:

               Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs;
                 Children’s Health Insurance Program (CHIP);
                Medicaid (other than for long-term institutionalization);
                Housing benefits;
                Any benefits related to immunizations or testing for communicable diseases; or
                Other supplemental or special-purpose benefits.

We will continue to monitor developments related to this rule and timely inform our clients. If you are interested in exploring immigration options for yourself or your employees, please contact a member of our Immigration Practice.