On July 29, 2020 the U.S. District Court for the Southern District of New York (SDNY) in State of New York enjoined USCIS’s implementation of the new public charge rule while there is a national health emergency in response to the pandemic of COVID-19. As a result, On August 4, USCIS announced it will use the 1999 public charge guidance.
1. Explanation of new public charge rule
On February 24, 2020, USCIS started to adopt the new public chare rule to all applications and petitions filed on or after February 24, 2020. In addition, starting from February 24, 2020, most family-based and employment-based green card applicants are required to file Form I-944 Declaration of Self-Sufficiency together with their Form I-485 application.
Under the new public charge rule, USCIS will look at 15 factors, like an alien’s age, health, family status, assets, resources, and financial status, education and skills, among others, in order to determine whether the alien is likely at any time to become a public charge to the United States. Form I-944 is primarily used to collect information related to these 15 factors. An alien who is likely at any time to become a public charge is generally inadmissible to the United States and ineligible to become a lawful permanent resident.
According to new public charge rule, public charge is defined as an alien receiving one or more public benefits for a period of 12 months during a 36-month period. Receipt of two benefits in one month will count as two in the 12-month requirement. The following chart is the comparison of between the 1999 public charge rule and new public charge rule with respect to public benefits:
1999 public charge rule
New public charge rule
· State/Local Cash Assistance Programs
· Public Assistance for long-term institutional care (including Medicaid)
· Federal/State/Local Cash Assistance Programs
· SNAP (Food Stamp)
· Medicaid (non-emergency)
· Housing assistance
· Government- funded institutionalized long-term care
2. Exemption from new public charge rule
The new public charge rule does not consider the following programs as public benefits:
- Disaster relief
- Emergency medical assistance
- Services provided in connection with the Individuals with Disabilities Education Act
- School lunch and school breakfast
- Children’s Health Improvement Program (CHIP)
- Women, Special Supplemental Nutrition for Women, Infants and Children (WIC)
- Medicaid benefits received by pregnant women and children under the age of 21
- Programs entirely funded by state, local or tribal government, other than cash
- Subsidies for Affordable Care ActMarketplace coverage (Obamacare)
The following aliens are exempt from the public charge ground of inadmissibility when they apply for green card:
- Survivors of domestic violence
- Individuals who have or are applying for U or T visas (victims of certain crimes and trafficking survivors)
- Afghans and Iraqis with special immigrant visas
- Children seeking Special Immigrant Juvenile status
- Active duty service members
Exempted green card holders
Fortunately, lawful permanent residents (green card holders) applying for U.S. citizenship are also not subject to the public charge test. In other words, even if you have ever received some of public benefits under the new public charge rule, you will not be deemed as ineligible for citizenship just because you have received such public benefits prior to the citizenship application.
3. Consequence of the suspension of new public charge rule
- Applicants and petitioners whose applications or petitions are filed on or after July 29, 2020, should not include the Form I-944.
- Applicants and petitioners whose applications or petitions are filed on or after July 29, 2020, should not provide information about the receipt of public benefits on Form I-485, Form I-129, Form I-129CW, Form I-539, or Form I-539A.
- For applications and petitions that USCIS adjudicates on or after July 29, 2020, USCIS will not consider any information provided on the Form I-944 or any supporting documentation included with that form.
- For applications and petitions that USCIS adjudicates on or after July 29, 2020, USCIS will not consider any information provided on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A, Part 6 on Form I-129, or Part 6 on Form I-129CW, or any additional documentation pertaining to the public benefit condition.
- In any public charge inadmissibility determination, USCIS will consider the receipt of public benefits consistently with the 1999 public charge rule.