United States: DHS Publishes Final Rule On Public Charge

Last Updated: August 16 2019
Article by Elizabeth Espín Stern, Paul W. Virtue and Grace Shie

On August 12, 2019, US Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS), published an advance copy of the final rule on inadmissibility on public charge grounds. The final rule will be effective 60 days after the date of publication in the Federal Register. According to the notice, applications and petitions already pending with USCIS on the effective date of the rule will not be subject to the new rule. The final rule will be published in the Federal Register on August 14, 2019. This Legal Update provides background on and details of the rule and notes its potential impact and likely response to the rule. 

A. Statutory Authority

  • The Immigration and Nationality Act of 1952 (INA) and implementing regulations have long included grounds of inadmissibility and removal designed to limit access to public benefits by immigrants and nonimmigrants.

  • Under INA Section 212(a)(4), an alien may be denied admission into the United States or adjustment to lawful permanent resident (LPR) status if he or she is "likely at any time to become a public charge."

  • Under INA Section 237(a)(5), an individual admitted to the United States may be subject to removal if he or she has become a public charge for reasons not affirmatively shown to have arisen since entry. This ground of removal has been rarely applied and is not affected by the new rule.

B. Legacy Implementation

  • In September 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which mandated consideration of the following factors in making a public charge assessment: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. IIRIRA also included new provisions requiring most family-based immigrants and some employment-based applicants to submit a Form I-864, Affidavit of Support, from a qualifying US citizen or lawful permanent resident sponsor. By signing Form I-864, the sponsor agrees to use his or her financial assets to support the sponsored immigrant. The sponsor's assets are deemed to be available to the immigrant when the immigrant applies for means-tested public benefits. Form I-864 is a contract that may be enforced by the sponsored immigrant and the benefit agency if the agency pursues repayment of the benefits provided.

  • DHS and the Department of State (DOS) have primary responsibility for implementing the public charge provisions. USCIS may make a public charge determination when an individual applies to adjust to LPR status. Abroad, DOS consular officers may make a public charge determination when an individual applies for a visa.

  • Although the INA does not explicitly define the term "public charge," since 1999, interim guidance has defined it to mean a person who is or is likely to become "primarily dependent" on "public cash assistance for income maintenance" or "institutionaliz[ed] for long-term care at government expense" (INS No. 1989-99 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28675-88 (May 26, 1999)). The new rule explicitly supersedes the 1999 interim guidance. 

C. Change in Policy and Reported Impact

  • In January 2018, DOS revised the Foreign Affairs Manual (FAM) to instruct consular officers to consider a wider range of public benefits when determining whether visa applicants who have received or are currently receiving benefits are inadmissible on public charge grounds.

  • Recent press reports have indicated that the number of visas denied based on the likelihood that the applicant will become a public charge has increased dramatically. For example, POLITICO recently reported that DOS had denied 5,343 immigrant visa applications for Mexican nationals on public charge grounds so far this fiscal year, compared to just seven denials for Mexican applicants in fiscal year (FY) 2016.

  • The number of visa denials for applicants from all nations based on public charge has risen, as well. DOS data shows 12,179 visa rejections on public charge grounds from October 1, 2018, through July 29, 2019. DOS disqualified only 1,033 people worldwide on public charge grounds in FY2016.

D. The Final Rule

  • On October 10, 2018, DHS published a notice of proposed rulemaking, "Inadmissibility on Public Charge Grounds," with request for public comments. The agency reports that it received and considered 266,077 mostly negative comments in response to the proposed rule.

  • The current list of specified public benefits includes only federal, state, local, or tribal cash assistance for income maintenance or institutionalization for long-term care at government expense, Temporary Assistance for Needy Families (TANF), and Supplemental Security Income (SSI). The new rule adds non-cash benefits such as Medicaid (with limited exceptions for Medicaid benefits paid for an "emergency medical condition" and for certain disability services related to education), the Medicare Part D Low-Income Subsidy, the Supplemental Nutrition Assistance Program ("SNAP" or "food stamps"), the Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and public housing.

  • The rule defines a "public charge" to mean "an alien 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 new rule also specifies a list of factors, such as age, English language proficiency, family size, and health, that would be considered in determining whether, "in the opinion of the officer," the applicant is "likely to become a public charge." Information on the factors will be collected on Form I-944, a new form designed for this purpose.

  • When considering receipt of public benefits in the public charge inadmissibility determination, DHS will not consider any public benefits received by aliens serving in active duty or in the Ready Reserve component of the US Armed Forces or the spouse or child of the service member. Additionally, DHS will not consider disaster relief, emergency medical assistance, benefits received by an alien's US citizen children, and Medicaid benefits received by children of US citizens and potential adoptive children of US citizens.

  • The rule also enumerates 27 categories of individuals, including refugees and asylees, who are exempt by statute or regulation from the public charge ground of inadmissibility.

  • In addition, for the first time, a nonimmigrant seeking a change of status or extension of stay will be required to state whether he or she has received public benefits.

  • Finally, the rule authorizes officers to allow the posting of a public charge bond in an amount not lower than $8,100 (indexed annually for inflation) to overcome a finding of inadmissibility on public charge grounds.

E. Impact of Final Rule and Likelihood of Litigation

  • The new rule is likely to exacerbate the upward trend in public charge visa denials noted above, with the most significant effects being felt by immigrants from Mexico and Central America. The Migration Policy Institute (MPI), for example, reviewed US Census Bureau data from 2012 to 2016 to evaluate the anticipated impact of the proposed "totality of the circumstances" test under which officers will consider a series of positive and negative factors in assessing the likelihood of becoming a public charge.  MPI found that, "if the test were applied to the approximately 940,000 permanent residents admitted in 2017 (excluding refugees, asylees, and other humanitarian admissions), about 650,000 would have been at risk of denial for having at least one negative factor, and, among them, about 400,000 for having at least two."

  • Immigrant advocacy groups have suggested that, as with the proposed rule, the final rule will have a chilling effect on families, who will chose to forgo essential services for which they are otherwise eligible to avoid putting their immigration status at risk.

  • Press reports from India have raised concerns that the "totality of the circumstances" list of factors, such as English proficiency, income, and family size, could be used to deny the H-1B and F-1 student visa applications of people who have never even used public benefits.

  • While DHS did make some changes based on the numerous public comments it received, the new rule is already being challenged in the courts. The first lawsuit was filed on August 12, 2019, by Santa Clara County and San Francisco, alleging that the rule conflicts with the INA and seeking a temporary injunction in the Northern District of California. In addition, the attorneys general for New York and California have vowed to fight the rule in court.

  • If the new rule is allowed by the courts to take effect, we also anticipate legal challenges brought by or on behalf of persons found to be inadmissible under it, including those seeking to extend or change their status in the United States.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2019. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions