On January 27, 2020, the Supreme Court lifted a nationwide injunction blocking the new public charge rule initially slotted to take effect on October 15, 2019. Starting on February 24, 2020, the new public charge rule will take effect in all states except for Illinois, where a federal court injunction prohibits DHS from enforcing the regulation. This announcement means that foreign nationals seeking permanent residence through adjustment of status will be subject to significantly increased information and documentation requirements. This new rule will apply for all applications postmarked on or after February 24.

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 visasE-2 Treaty InvestorE-3 Australian Treaty AlienF-1 StudentH-1B Specialty Occupation, J-1 Exchange Visitor, K-1 FiancéeO-1 Extraordinary AbilityTN 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.

The State Department has also finalized their own public charge regulation for consular processing applicants outside of the United States. This new rule has not yet been implemented.

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