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DHS Publishes Proposed Public Charge Rule

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Public Charge Rule

The U.S. Department of Homeland Security (DHS) has issued a proposed rule that, if implemented, would reaffirm long-standing guidance applicable for determinations of whether an individual will turn into a public charge. In its declaration, the DHS calls the rule “fair and humane,” rather than the 2019 rule executed under the Trump Government.

Background on Public Charge

Under U.S. immigration law, a foreign national who is considered likely to become a public charge is inadmissible, and subsequently will not be issued a U.S. visa, granted admission to the United States, or allowed to adjust status (i.e., be given a green card while in the U.S.). In 2019, the Trump government dramatically expanded the definition of public charge and implemented a more stringent rule to determine inadmissibility in connection with the receipt of benefits. Also, this resulted in a complex and burdensome system to determine whether a foreign national would likely be denied an immigration benefit based on public charge grounds. The rule was eventually blocked by several federal courts.

Overview of Proposed Rule on “Public Charge” with Examples

The proposed rule returns the definition of “public charge” to the 1999 definition. Prior to the implementation of the Trump Administration’s 2019 public charge rule, the DHS depended on the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds to define public charge. This guidance is defined as a person who is “primarily dependent on the government for subsistence, as shown by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.”

Instances of public charge under the proposed rule include the following:

  • Supplemental Security Income (SSI)
  • Cash help for income maintenance under the Temporary Assistance for Needy Families (TANF) program
  • State, tribal, territorial, and local cash help for income maintenance
  • Long-term institutionalization at government expense

Exemptions from Public Charge with Examples

Furthermore, the proposed rule explicitly expresses that receipt of a few commonly used public benefits is not considered while making a public charge determination. some of these exempted benefits include the following:

  • Food and nutrition help programs including the Supplemental Nutrition Assistance Program (SNAP)
  • Kids’ Health Insurance Program
  • Most Medicaid benefits (except for long-term institutionalization at government expense)
  • Housing benefits
  • Transportation vouchers
  • Disaster assistance received under the Stafford Act
  • Pandemic assistance
  • Further, benefits received via a tax credit or deduction
  • Social Security
  • Government pensions or other earned benefits

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The proposed public charge rule under the Biden Administration adjusts the desire to save the United States. Moreover, a welcoming destination for immigrants with the responsibility of not unduly shifting financial burdens onto U.S. taxpayers. The public has until 24th February 2022, to submit comments to the DHS regarding the proposed rule.

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