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1 1 (August 4, 2020)

handle is hein.crs/govebdo0001 and id is 1 raw text is: o retssi&naI Research $erwce ¼hirnin~j th ~ del%~m Sfl~ ~ I 14 Updated August 4,2020 Immigration: Public Charge 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 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 admis sion 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) vis as, in practice it is rarely employed for nonimmigrant vis as. Certain categories of aliens, such as refugees and asylees, are exempted from the public charge ground of inadmissibility. It is not applicable to aliens who are applying for citizenship (i.e., naturalization). Defining Public Charge Because the INA does not define thetermpublic charge, the determination of whether an alien seeking a vis a or adjustment ofstatus 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' evolvingdefmitions of public charge mustbe considered. Since 1999, agency guidance (formerly the Departmentof 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-termcare. From 1999-2018, DOS's FAM followed DHS' guidance. In January 2018, DOS revised the FAM to instructconsular officers to consider an alien's past or current receipt of public as sistance 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 government-fundedlong-term care), it did change the scope of public benefits that consular officers must consider when applying that definition (i.e., noncashbenefits as wellas cashbenefits). On August 15, 2019, DHS published a fmalrule 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 any 36-month period. This rule also changedhow 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 theU.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 Considerationsfo r Congress, by Ben Harrington). On February 24, 2020, DHS began implementing the finalrule nationwide. However, the rule was enjoined again onJuly 29, 2020 (see COVID-19 Pandemic below). On October 11, 2019, DOS published an interimfmal rule on the public charge ground of inadmis sibility thatlargely aligns with DHS' rule. The DOS rule was set to take effect on October 15, 2019, but was delayed untilthe 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 orderto 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 newrule. Thus, DOS implemented the interimfmalrule on February 24, 2020, the same day as DHS. However, the nib was enjoined onJuly 29, 2020 (see COVID-19 Pandemic below). Designated Benefit Programs 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 as sistance, and benefits provided for institutionalized long-termcare; 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.

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