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DHS Issues New Public Charge Rules

By November 23, 2022Immigration
a newspaper with the title "changes are coming in 2023"

The Department of Homeland Security has issued new public charge rules that will take effect on December 23, 2022. Under the current definitions, which follow the 1999 Interim Field Guidance, the term “public charge” is a concept that applies when someone is applying for a green card, applies to noncitizens who are “likely to become . . . primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.”

The new public charge rules essentially mirror the current policies. The rules determine that a foreign national is likely to become a public charge if they either (1) the receipt of public cash assistance for income maintenance; or (2) by long-term institutionalization at government expense. The rule commentary clarifies that “primary dependence” on the government is meant to connote significant reliance on the government for support, meaning more than dependence that is transient or supplementary.

As a part of the new regulations, USCIS will provide a new Form I-485 where applicants will be required to provide information on their assets, liabilities, resources, and receipt of certain public benefits, but will not be required to provide credit history information as the Trump-era regulation mandated. The new Form will be provided closer to December 2022.

USCIS will also consider the receipt of the following benefits while determining public charge:

  • Supplemental Security Income
  • Temporary Assistance for Needy Families
  • Cash assistance for income maintenance
  • Long-term institutionalization government assistance (including Medicaid, nursing home, as well as other forms of institutionalization).

Assistance outside of these categories will not be considered as public benefits under the new rules. Receipt of benefits on behalf of another will not be considered in a public charge determination. USCIS will also take into consideration a foreign national’s age; health; family status; assets, resources and financial status; education and skills; and a Form I-864 affidavit of support in cases where the form is required.

No initial supporting documents will be required for a typical adjustment of status application. However, USCIS will consider any documentation applicants choose to submit as supporting evidence, and may request additional documents later if needed.

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