Public Charge

Immigration Update: Public Charge Rule Effective February 24, 2020

Overview

For roughly 100 years, the United States Congress Immigration and Nationality Act (INA) has contained a “public charge” provision that states that applicants for a visa, admission to the United States, or adjustment of status within the United States must be evaluated as to their likelihood to become a public charge.  Public charge essentially means using public benefits such as food stamps or Medicaid while in the United States.

The Department of Homeland Security (DHS) and the Department of State (DOS) have recently issued regulations to further define the public charge provision.  In general, the DOS regulations affect applicants for immigrant or nonimmigrant visas.  The DHS regulations affect applicants for adjustment of status to permanent residence, admission to the United States at a port of entry, change of immigration status within the U.S., and extension of stay of nonimmigrants.

Impact

Various DHS forms commonly used by CSU students and scholars are impacted by this rule.  Questions have been added to these forms to determine whether an individual has received one or more public benefits “for more than 12 months in the aggregate within any 36-month period”.

  • I-129 – used for H, L, O, TN, etc. petitions;
  • I-539 – used for extensions or change of status of nonimmigrant status, e.g. reinstatement;
  • I-485 – used for adjustment of status to permanent resident; and
  • I-944 – which is a new form “Declaration of Self-Sufficiency” that will accompany the I-485.

The public benefits listed at 8 CFR 212.21(b) and 22 CFR 40.41(c), receipt of which on or after February 24, 2020 will be counted towards this threshold, include the following.  (Note that benefits received prior to 2/24/2020 do not count.)

  1. Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
    • (i) Supplemental Security Income (SSI);
    • (ii) Temporary Assistance for Needy Families (TANF); or
    • (iii) Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names);
  2. Supplemental Nutrition Assistance Program (SNAP) (commonly known as “food stamps”);
  3. Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD;
  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
  5. Medicaid under 42 U.S.C. 1396 et seq., except for:
    • (i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
    • (ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
    • (iii) School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;
    • (iv) Benefits received by a non-US Citizen or Permanent Resident under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
  6. Public Housing under section 9 of the U.S. Housing Act of 1937.

Receipt of the following does not result in a determination of public charge:

  • Benefits received by an immigrant’s family members
  • Emergency medical assistance
  • Medicaid received by (1) children under age 21, (2) during pregnancy or within 60 days of pregnancy, or (3) under the individuals with Disabilities Education Act (DEA)
  • Health insurance under the Affordable Care Act (Colorado Compact)
  • Social security and Medicare
  • WIC
  • CHIP
  • Energy Assistance
  • Pell grants and student loans
  • Worker’s Compensation or Unemployment Benefits
  • Tax-related cash benefits
  • Food Bank or Food Pantry

In most cases, CSU international students and scholars should not have concerns about the public charge provisions.  However, students or scholars with additional concerns are encouraged to seek legal advice.  International students at CSU may consult with Student Legal Services while CSU scholars may wish to engage the services of a qualified immigration attorney.

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