The Department of Homeland Security released a draft regulation Saturday that establishes the standards the agency will use to apply the “public charge” ground of inadmissibility. The proposal defines public benefits that, when used, could make immigrants ineligible for a visa or a permanent resident card (green card). The draft regulation also proposes a new, complex calculation that includes factors used for determining whether applicants are likely to become a public charge and gives adjudicators greater discretion in making that determination.

Key points:

  • Under current law, immigrants are already required to demonstrate that they can support themselves and may be denied a green card if they are “likely to become a public charge.”
  • However, until now, only public assistance in the form of cash benefits have been considered in that determination. The proposed regulation would significantly expand the types of benefits the government can consider in making the “public charge” determination to include non-cash benefits such as food assistance, housing benefits and Medicare Part D prescription drugs.
  • The draft rule also proposes that applicants filing petitions or applications for temporary visas be required to provide additional evidence in their applications to U.S. Citizenship and Immigration Services regarding public charge considerations. Those seeking to extend their visas or to change their visa status would be required to prove that they have not received, are not currently receiving, and are not likely to receive public benefits as defined in the proposed rule.
  • The proposed regulation will only take into consideration public benefits that are received after the effective date of the regulation unless the benefits were already taken into account in the determination under the current government guidance. Additionally, the proposal does not count public benefits that an applicant’s family members receive, such as U.S. citizen children, as negative factors.

The full proposed rule as published on the DHS website may be viewed here.

BAL Analysis: The proposed regulation has not yet been published in the Federal Register. There will be no change in law until a final regulation becomes effective, which will not happen for at least four months. Once DHS publishes the proposed rule—which is expected in the coming days or weeks—a 60-day period will follow during which businesses and individuals are encouraged to submit their comments to the government. The agency is then required to review all comments before publishing a final regulation. The final regulation will likely take effect 60 days after it is published. The complicated, novel, and controversial nature of some of these provisions make a court challenge likely if this moves to a final rule. BAL is continuing to review the proposal and will provide additional guidance regarding its potential impact.

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

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