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1 1 (September 15, 2020)

handle is hein.crs/govdbvl0001 and id is 1 raw text is: , . ' iE SE .r 'h i , Immigration: Public Charge - mmm, go mppm qq\ , q I as 11LIANJILiN, Updated September 15, 2020 Immigration law in the United States has long contained exclusion and removal provisions designed to 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 admission into the United States or lawful permanent resident (LPR) status if he 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 subject to removal from the United States based on a 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 inadmissibility. DHS makes public charge inadmissibility determinations for aliens seeking admission or adjustment from a temporary status to LPR status. DOS consular officers make public charge inadmissibility determinations for aliens abroad applying for U.S. visas, 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 nonimmigrant visas. 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 the term public charge, the determination of whether an alien seeking a visa or 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 the INA's public charge provisions, both agencies' evolving definitions of public charge must be 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 institutionalization for long-term care. 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 assistance 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 dependent on cash assistance for income maintenance or government-funded long-term care), it did change the scope of public benefits that consular officers must consider when applying that definition (i.e., noncash benefits as well as cash benefits). On August 15, 2019, DHS published a final rule 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 12 months within any 36-month period. This rule also changed how factors are considered in public charge determinations (see below). It was set to take effect on October 15, 2019, but multiple 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 over its legality continues (for more information on this litigation, see CRS Legal Sidebar LSB10341, DHS Final Rule on Public Charge: Overview and Considerations for Congress, by Ben Harrington). On February 24, 2020, DHS began implementing the final rule nationwide. On October 11, 2019, DOS published an interim final rule on the public charge ground of inadmissibility 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) approved the Public Charge Questionnaire (DS-5540). On February 12, 2020, DOS published a notice of intent in the Federal Register seeking emergency OMB processing and approval for the DS-5540 in order to implement the Department's interim final rule by February 24, 2020. On February 20, 2020, DOS announced that OMB had approved the DS-5540. On February 21, 2020, the FAM was updated to reflect this new rule. Thus, DOS implemented the interim final rule on February 24, 2020, the same day as DHS. However, the rule was enjoined on July 29, 2020 (see COVID-19 Pandemic below). The DHS final rule, and the subsequent DOS interim final rule, expanded the list of public benefits considered in 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-term care; as well as five additional programs: the Supplemental Nutrition Assistance Program (SNAP), Medicaid (with exceptions), Project-Based Rental Assistance, the Housing Choice Voucher Program, and Public Housing. Benefits received by certain groups, such as members of the U.S. Armed Forces and their spouses and children, do not

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