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Update on Immigration Public Charge Rule Update on Immigration Public Charge Rule

Update on Immigration Public Charge Rule

On August 14, 2019, the Department of Homeland Security (DHS) published a final rule amending the interpretation and determination of public charge in the immigration context. A “public charge” is an individual who is likely to become primarily dependent on the U.S. government for income support or long-term care. Under U.S. immigration laws, such an individual is deemed inadmissible to the U.S. and ineligible for permanent residence. The rule was scheduled to take effect on October 15, 2019, but after several lawsuits were filed against DHS, multiple courts issued orders enjoining the final rule just prior to its implementation. The rule is now on hold until final decisions are reached in those lawsuits.

The public charge rule itself is not new. Existing immigration laws have long held that individuals are inadmissible if they are likely to become a public charge. Under the new rule, however, there are more factors that may be considered that could lead to a determination of inadmissibility. Receipt of certain public benefits, for example, remains a factor in the determination, but under the new rule, the list of public benefits subject to public charge consideration has been expanded. The new rule sets forth specific additional factors for consideration in public charge determinations for green card applicants, including age; health; family status; education and skills; and assets, resources, and financial status.
Many commentators believe family-based green card applicants will be most impacted by the new rule since it allows immigration officers to consider whether applicants may become dependent on the U.S. government for support. Nonimmigrants extending or changing status within the U.S. will be required to provide details regarding prior receipt of public benefits, so the new rule stands to affect even employment-sponsored beneficiaries seeking immigration benefits in the U.S.

The ultimate fate of the new rule remains unknown as a result of the ongoing litigation, but applicants should be aware of the potential impact and be prepared to provide more information and documentation as part of any immigration filing. Please contact Christl P. Glier, Jenifer M. Brown, or another member of our Immigration Practice Group to discuss public charge issues or related immigration matters.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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