USCIS under the Biden Administration has pushed out a new version of the Public Charge Rule, effective 12/23/2022. All green card applications postmarked or submitted on or after this date are subject to the new rule. A public charge is someone that relies on government assistance programs.
More Relaxed Public Charge Rule
Overall, compared to the old rule implemented by the Trump Administration on 02/24/2020, the new Public Charge Rule is much more lenient. The old rule scrutinized the applicant's finances, health, education, skills, age, etc., extensively. The applicant's use of public benefits was a major factor for USCIS to consider when adjudicating his/her green card application. Applicants had to submit extensive financial documents with their I-485 applications, including tax returns, health insurance documents, proof of assets such as bank statements and property deeds, etc.
New Rule Not Applied to Temporary Visitors
The new version of the rule is a lot less severe in terms of requirements. For one thing, it does not apply to non-immigrants such as F-1 students, B-2 visitors, and H-1B workers. Another major difference is that applicants are not required to proactively submit their financial documents with their green card applications. Upon receipt of the applications, USCIS will decide if any additional documents are required regarding public charge.
Totality of Circumstances Test
Overall, USCIS will adopt a "totality of the circumstances" test to consider if an applicant will likely become a public charge. Similar to the old rule, the new rule will continue to consider the factors enumerated by the statute under INA §212(a)(4). Accordingly, USCIS will consider the applicant's age; health; family status; assets, resources, and financial status; and education and skills. Regarding health, USCIS will base its consideration on the medical exam report prepared by a qualified civil surgeon. The medical exam is used to screen for the potential health-related inadmissibility grounds, such as a contagious decease. Under the new rule, a disability alone, without other adverse factors, will not be used to disqualify an applicant from receiving lawful permanent status.
Cash Benefits and Long-term Care
The new rule focuses on how likely an applicant will become primarily dependent on the government for subsistence. Two major factors to consider include receipt of public cash assistance for income maintenance and long-term institutionalization at government expense.
Receipt of public cash assistance will be considered as adverse factors. These include Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and non-Federal “cash benefit programs for income maintenance (often called “General Assistance”) offered by the States. USCIS has also clarified that benefits given to family or household members would not be considered even if the applicant applied for those benefits on that person’s behalf. Benefits normally offered to refugees, even if received by non-refugee applicants, will not be considered for the purposes of public charge determination.
Medicaid long-term institutionalized care will be considered as a public charge factor. However, short periods of institutionalization for rehabilitation purposes or imprisonment for conviction of a crime will not be considered. Finally, Home and Community-Based Services (HCBS) under Medicaid is also not a factor to consider.
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