The US Department of Homeland Security makes it tougher for foreign nationals who have received public benefits to adjust, renew, or extend their status in the United States. Applicants can be refused temporary or permanent immigration into the country if it appears they will be likely to become wholly dependent on public assistance. Employers sponsoring foreign nationals should be aware of what the list of public benefits entails.
The new “public charge” rule from the US Department of Homeland Security (DHS) is intended to broaden consequences for those foreign nationals who may have obtained a public benefit and are seeking to adjust, renew, or extend their status in the United States. US immigration law and regulations have historically established that immigration adjudicators have the ability to determine if a foreign national is inadmissible to the United States if they believe the foreign national is likely to become a “public charge.” The longstanding interpretation of this ground of inadmissibility has been that applicants for temporary or permanent immigration to the United States may be refused admission if it appears likely that they will become wholly dependent on public assistance. The new regulation released this week increases the scrutiny on applicants for immigration benefits, indicates that even temporary reliance on public assistance may render an applicant inadmissible to the United States, and broadens the categories of public assistance that could lead to a finding of inadmissibility. The new rule is set to take effect on October 15. Foreign nationals who apply or have applied for adjustment of status to lawful permanent residence or for a change or extension of temporary nonimmigrant status before this date will not be subject to the heightened scrutiny.
Accordingly, the new rule states the following:
The new rule currently does not apply to port of entry applications adjudicated by US Customs and Border Protection (CBP) or consular processing cases handled through the Department of State (DOS). However, DOS may implement future changes to its Foreign Affairs Manual that are similar to the new rule.
Both definitions have been revised to clarify the threshold level of receipt of a public benefit that would result in the applicant’s being deemed a public charge. A “public charge” has been defined as a foreign national who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (the receipt of two benefits in one month counts as two months).
The rule also states that an application or certification for public benefits alone may be viewed as evidence of a foreign national’s likelihood of receiving public benefits in the future, but does not in and of itself constitute “receipt.” Furthermore, benefits received by a dependent, such as the spouse or child of the principal applicant, will not be considered unless the principal applicant is listed as also receiving the benefit. Moreover, if a foreign national is the person receiving benefits on behalf of another (for instance as a parent or legal guardian), that foreign national will not be considered to have received, been certified for, or applied for such public benefits.
The list of public benefits that may lead to a public charge finding include the following:
The following are not considered to be public benefits subject to the new public charge rule:
Certain foreign nationals are exempt from public charge determinations. Exempt categories include applicants for adjustment who are persons seeking or who have been granted asylum, refugees, certain “special immigrant juveniles,” and certain applicants who were victims of certain crimes or human trafficking, as well as self-petitioners under the Violence Against Women Act.
After the new rule takes effect October 15, employers sponsoring foreign national employees for nonimmigrant visas or US permanent residence may wish to ensure that these employees are familiar with the list of public benefits that may result in a finding of “public charge” inadmissibility. In addition, it is important to consider that the new Form I-944, Declaration of Self Sufficiency, will require significant preparation time to ensure that it is properly completed and has the appropriate supporting documentation.
If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:
Laura C. Garvin
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