The Department of Homeland Security (DHS) on August 14, 2019, announced its final rule on inadmissibility on public charge grounds that imposes a new public benefit condition on individuals who apply for a change or extension of nonimmigrant status. The new rule was originally scheduled to take effect on October 15, 2019.
But on October 11, 2019, the U.S. District Court of the Southern District of New York and two other federal courts enjoined DHS and U.S. Citizenship and Immigration Services (USCIS) from enforcing the rule. And the courts blocked the government from implementing the use of any new or updated forms that would need to be submitted under the final rule, including forms used for nonimmigrant visas such as H-1B.
Under the public charge rule, DHS will consider whether an individual has received public benefits for a total of more than 12 months within a 36-month time frame from the date of obtaining the nonimmigrant status that an applicant is seeking to change or extend, up until the time of adjudication of the applicant’s request.
USCIS would consider enrollment in public benefits such as Supplemental Security Income, the Supplemental Nutrition Assistance Program (SNAP), government-subsidized housing such as Section 8 vouchers, and certain federal Medicaid benefits.
The public charge condition is entirely retrospective. DHS will not evaluate a nonimmigrant’s likelihood of becoming a public charge in the future. Additionally, the public charge condition applicable to a nonimmigrant seeking a change or extension of status is different than the public charge standard that DHS will use for an applicant for adjustment of status or for admission.
For the latter, DHS will apply a multi-factor “totality of circumstances” test to determine the likelihood of those applicants becoming a public charge. Applicants for change or extension of nonimmigrant status are not required to submit a Declaration of Self-Sufficiency.