New Public Charge Rule Rescinded: Green Card Applicants?

A U.S. Federal Court in Illinois issued a decision rescinding the new Public Charge Rule of the Department of Homeland Security on November 2, 2020. The implementation by the U.S. Citizenship and Immigration Services (“USCIS”) of the new Public Charge Rule is halted. Thus, this Rescinded Public Charge Rule shall not be enforced by the USCIS. We suspect an appeal of the decision of the court.

This news is a welcome respite for some Green Card applicants who are struggling to survive during this Coronavirus pandemic lockdowns. These immigrants are worried that due to the Public Charge Rule their Green Card applications shall be denied if they seek public assistance such as food stamps, Medicaid or housing assistance.

If you are interested to know more about obtaining permanent residency in the U.S., please read our other article about Different Paths to Obtaining a U.S. Green Card.

US Immigration Laws. Public Charge Rule.

New Public Charge Rule Rescinded by USCIS

Under section 212(a)(4) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 1182(a)(4), “any alien who at the time of application for a visa or who at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.”

The Public Charge Rule was first enacted by the United States Congress in 1882. The Public Charge Rule was implemented to broadly allow the U.S. government to deny a visa for entry to the United States to anyone who “is likely at any time to become a public charge. ” Prior administrations defined a Public Charge in a much more limiting fashion than the Trump Administration, thus, allowing more immigrants that receive or may receive public assistance to earn a U.S. visa.

Thus, in short, the recently Rescinded Public Charge Rule expanded the public charge definition, from that of other administration, and thus broadened the definition of inadmissible aliens who are disqualified from receiving a U.S. visa or U.S. Green Card.

The following chart, briefly, illustrates the salient differences between the “Current Public Charge Rule” and the “Rescinded Public Charge Rule.” We shall update the reader when more is known on this issue and if the Trump Administration shall pursue an appeal of this decision.

Current Public Charge Rule	Rescinded Public Charge Rule
Public charge is defined as “person who is primarily dependent on the Government for subsistence, as demonstrated by either receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.”	Public charge is defined as an “alien who receives one or more designated public benefits for more than 12 months in the aggregate within a 36-month period.”
Non-cash benefits such as Medicaid, food stamps, etc. are not considered in determining whether the alien is likely to become a public charge.	The new rule includes in the definition of public benefit not only cash benefits but also Medicaid, housing vouchers, food stamps etc.
Factors to be considered in determining whether on is likely to become public charge: “Age, health, family status, assets, resources, and financial status, and education and skills.”	Factors to be considered in determining whether one is likely to become public charge: “Age, health, family status, assets, resources and financial status and expected period of admission, and sufficiency of Form-864 and Form I-864EZ when required.”

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