DHS to publish rule to restore “historical understanding” of public charge inadmissibility

The Department of Homeland Security (DHS) is poised to publish a final rule to codify pre-Trump guidance related to the “public charge” ground of inadmissibility.

Key Points:

• The rule will formalize long-standing guidance that is applied today. This guidance was in place from 1999 until the Trump administration published a regulation in 2019 that sought to expand “public charge” to include certain non-cash benefits. DHS said the rule “restores the historical understanding of a ‘public charge.’”
• When making a public charge determination, DHS will not consider receipt of food and nutrition assistance (SNAP); the Children’s Health Insurance Program (CHIP); most Medicaid benefits; housing benefits and transportation vouchers; COVID-19 assistance; or tax credits, deductions and other earned benefits. DHS will also not consider benefits received by an applicant’s family members.
• DHS will not apply the public charge determination to applications to change or extend nonimmigrant status.
• DHS is scheduled to publish the regulation in the Federal Register tomorrow, Sept. 9. A prepublication version is available here.
• The rule is scheduled to take effect 105 days from the date of publication. DHS said that between now and then, it will “conduct necessary public outreach to minimize the risk of confusion or chilling effects among both noncitizens and U.S. citizens.” The agency may also provide additional guidance to inform how immigration officers should consider the “totality of the circumstances” when making public charge determinations.

Additional Information: In publishing the 2019 regulation, the Trump administration sought to significantly expand the grounds by which applicants could be denied lawful permanent residence (green cards) under the Immigration and Nationality Act’s public charge ground of inadmissibility. The 2019 regulation faced multiple lawsuits and was ultimately vacated in court. The Biden administration declined to enforce the regulation and withdrew appeals that were pending in the U.S. Supreme Court and other appellate courts. In February, DHS published a proposed rule to restore the previous public charge guidance. The agency accepted comments from the public on the proposal and has now finalized the rule.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.