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1 1 (August 13, 2020)

handle is hein.crs/govdber0001 and id is 1 raw text is: Ik Immigration: Public Charge Updated August 13,2020 Immigration law in the United States has long contained exclusion and removal provisions designedto limit government spending on indigent non-U.S. nationals. (Non- U.S. nationals are referred to as aliens in immigration law.) Under the Immigration and Nationality Act (INA), an alien may be denied admis sion into the United States or lawful permanent resident (LPR) status ifhe or she is likely at any time to become a public charge (8 U.S.C. § 1182(a)(4)). An admitted alien may also be subjectto removal from the United States based ona separate public charge ground of deportability,but this is rarely employed. The Department of Homeland Security (DHS) and the Department of State (DOS) have primary responsibility for implementing the public charge ground of inadmis sibility. DHS makes public charge inadmissibility determinations for aliens seeking admission or adjustment froma temporary status to LPRstatus. DOS consular officers make public charge inadmissibility determinations for aliens abroad applying for U.S. vis as, based on guidance in the Foreign Affairs Manual (FAM). While this applies to both immigrant and nonimmigrant (i.e., temporary) visas, in practice it is rarely employed for noninmigrant vis as. Certain categories of aliens, such as refugees and asylees, are exempted from the public charge ground of inadmissibility. Moreover, it is not applicable to aliens who are applying for citizenship (i.e., naturalization). Because the INA does not define thetermpublic charge, the determination of whether an alien seeking a vis aor adjustment of status is inadmissible on public charge grounds turns largely on standards set forth in agency guidance materials. Because both DHS and DOS are primarily responsible for implementing theiNA's public charge provisions, both agencies' evolving definitions of public charge mustbe considered. Since 1999, agency guidance (formerly the Department of Justice's Immigration and Naturalization Service, now DHS) has defined public charge to mean a person who is or is likely to become primarily dependent on public cash assistance or government-funded ins titutionalization for long-termcare. From 1999-2018, DOS's FAM followed DHS' guidance. In January 2018, DOS revised the FAM to instruct consular officers to consider an alien's past or current receipt of public as s istance of any type including all types of state and federal noncash benefits-when determining whether an alien is likely to become a public charge. While this did not change the definition of public charge (i.e., it was still defined as someone dependenton cash assistance for income maintenance or govenment-funded long -term care), it did change the scope of public benefits that consular officers lmust consider when applying that definition (i.e., noncash benefits as wellas cashbenefits). On August 15,2019, DHS published a finalrule that re- defines public charge as someone more likely than not at any time in the future to receive one or more public benefits ... for more than 12months within any36-month period. This rule also changedhow factors are considered in public charge determinations (see below). It was setto take effect on October 15,2019, but lmultiple lawsuits and preliminary injunctions halted the rule. However, federal appellate courts and the U.S. Supreme Court eventually lifted all of these injunctions, allowing DHS to implement the rule while litigation overits legality continues (for more information on this litigation, see CRS Legal Sidebar LSB10341, DHS FinalRule on Public Charge: Overview and Considerationsfor Congress, by Ben Harrington). On February 24,2020, DHS began implementing thefinalrule nationwide. However, the rule was enjoined in certain states on August 12, 2020 (see COVID-19 Pandemicbelow). On October 11, 2019, DOS published an interimfinal rule on the public charge ground ofinadmis sibility that largely aligns with DHS' rule. The DOS rule was set to take effect on October 15,2019, but was delayed until the Office of Management and Budget (OMB) approvedthe Public Charge Questionnaire (DS-5540). On February 12,2020, DOS published a notice ofintent in the Federal Register seeking emergency OMB processing and approval for the DS-5540 in orderto implement the Department's interim final rule by February 24,2020. On February 20,2020, DOS announced thatOMB had approved the DS-5540. On Febru ary 21,2020, the FAM was updated to reflect this newrule. Thus, DOS implemented the interimfinalrule on February 24,2020, the same day as DHS. However, the rb was enjoined onJuly 29,2020 (see COVID-19 Pandemic below). The DHS final rule, and the subsequent DOS interim final rule, expanded the list of public benefits consideredin public charge determinations. The nine programs designated in the new rules include four that were included under the 1999 guidelines: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), state general assistance, and benefits provided for institutionalized long-termcare; as well as five additional programs: the SupplenentalNutrition Assistance Program (SNAP), Medicaid (with exceptions), Project-Based Rental As sistance, the Housing Choice Voucher Program, and Public Housing. A A '2

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