What is the DHS’ Fair and Humane Public Charge Rule?

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On September 9, 2022, the United States Department of Homeland Security (DHS) issued a final rule that gives noncitizens more clear guidance regarding DHS’s administration of the public charge ground of inadmissibility. To learn more about DHS’ revised Fair and Humane Public Charge Rule, please read on, then contact an immigration lawyer experienced in U.S. citizenship and naturalization matters.

What is the substance of the DHS’ revised Fair and Humane Public Charge Rule?

Section 212(a)(4) of the Immigration and Nationality Act (INA) states that a noncitizen is inadmissible for entry or to become a lawful permanent resident if they are “likely at any time to become a public charge.” For decades, that definition stayed more or less consistent with the United States’ bedrock values. However, the previous Administration began to consider supplemental public health benefits such as Medicaid and nutritional assistance as part of the public charge inadmissibility. This ruling punished noncitizens for accessing benefits Congress wanted them to have. This final rule has restored the previous definition of public charge.

Aside from developing a Policy Manual update to help USCIS officers apply this regulation fairly and consistently, the DHS will conduct public outreach and engagements to minimize the risk of confusion or fear among both noncitizens and United States citizens.

What benefits may a noncitizen receive without the DHS considering them a public charge?

In public charge determinations, the Department of Homeland Security will no longer consider benefits and non-cash benefits received by the applicant’s family members receive to be “public charges,” including the following:

  • 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
  • Other supplemental or special-purpose benefits

What will the DHS consider when determining if a noncitizen is a public charge?

If the DHS determines that a noncitizen is likely to become primarily dependent on the government for subsistence, it would consider that individual likely to become a public charge. To make that determination, the DHS will look at:

  • The noncitizen’s age, health, family status, assets, resources, financial status, education and skills
  • The filing of Form I-864, Affidavit of Support Under Section 213A of the INA, if required
  • The noncitizen’s prior or current receipt of:
    • Supplemental Security Income (SSI)
    • Cash assistance for income under Temporary Assistance for Needy Families
    • State, Tribal, territorial or local cash benefit programs for income maintenance
    • Long-term institutionalization at government expense

When does the DHS’ Fair and Humane Public Charge Rule take effect?

This final rule will take effect on December 23, 2022. If you have any questions or would like to know if you qualify, speak with a member of our firm today.

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If you have any immigration-related matters, contact the Lightman Law Firm to schedule your initial consultation today.