USCIS will resume Applying New Public Charge Rule with Applications

USCIS has announced on September 22 that in light of the second circuit’s decision to stay a limited injunction again the Department of Homeland Security’s public charge rule, it will resume applying the new public charge rule against adjustment of status, nonimmigrant change of status, and nonimmigrant extension of status applications.

In the new public charge rule, DHS has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received. The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). The rule further defines the term “public benefit” to include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs.

This rule also makes certain nonimmigrant aliens in the United States who have received designated public benefits above the designated threshold ineligible for change of status and extension of stay if they received the benefits after obtaining the nonimmigrant status they seek to extend or from which they seek to change. The nonimmigrant statuses that are included in here include B-1/B-2 Visitor and Business visas, E-2 Treaty Investor, E-3 Australian Treaty Alien, F-1 Student, H-1B Specialty Occupation, J-1 Exchange Visitor, K-1 Fiancée, O-1 Extraordinary Ability, TN NAFTA Professional, and more. Please note that spouses and children dependents of these visa holders are also included in the threshold.

This new rule does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others.