US Citizenship and Immigration Services (USCIS) announced on September 8 its new public charge rule.  The rule seeks to formalize traditional understandings of how this rule would be applied that were thrown into question by rules and executive pronouncements made by the previous administration, and becomes effective December 23, 2022.

USCIS had formally rescinded the old public charge rule put forth by the last administration in March of 2021, and has noted from time to time that it would put forth this replacement rule to clarify interpretations and enforcement of this now-confused ground of inadmissibility.  The last administration’s rule considered receipt of public health and nutritional benefits as negative factors in making a public charge determination, which served to discourage people from applying or using these benefits, contrary to public policy (especially concerning the health of children, who were the foremost beneficiaries of these nutritional programs).

Under the new rule, USCIS will make public charge determinations based on three factors:

• Age; health; family status; assets, resources, and financial status as well as education and skills (factors set forth in the Immigration and Nationality Act)
• Information contained on any Forms I-864, Affidavit of Support Under Section 213A of the INA, submitted on a noncitizen’s behalf in connection with an application or petition; and
• Prior or current receipt of Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); state, tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.

Unlike the prior administration’s policies, certain non-cash benefits are specifically excluded from consideration under the new rule as contrary to public policy:

• Supplemental Nutrition Assistance Program (“SNAP”) or other similar nutrition assistance programs
• Children’s Health Insurance Program (“CHIP”);
• Medicaid (except for long-term institutionalization);
• Housing benefits;
• Benefits related to immunizations or testing for communicable diseases; or
• Certain other supplemental or special-purpose benefits.

In addition, under the new rule only Benefits received by the applicant, not family members of the applicant, will be considered in public charge determinations.