The U.S Department of Homeland Security is inviting public comment on proposed regulations (the “Proposed Rule”) defining the rules DHS will apply to decide when a noncitizen is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA) because the person is likely at any time to become a “public charge.” The proposed rules could affect workers or family members of workers who are noncitizens seeking to renew visas who have accessed certain public assistance while in the United States as well as noncitizens seeking new visas to enter the United States. The deadline for submitting comments is April 25, 2022.
Public Charge Rule Generally
Under Section 212(a)(4) of the INA, an applicant for a visa, admission, or adjustment of status generally is inadmissible if the applicant “is likely at any time to become a public charge” The public charge ground of inadmissibility, therefore, applies to individuals applying for a visa to come to the United States temporarily or permanently, for admission, or for adjustment of status to that of a lawful permanent resident.By statute, however, some categories of noncitizens such as refugees; asylees; certain T and U nonimmigrant visa applicants (human trafficking and certain crime victims, respectively); and certain self-petitioners under the Violence against Women Act are exempt from the public charge inadmissibility ground. Also the DHS Secretary possesses discretionary authority to waive public charge inadmissibility for a noncitizen that provides a suitable and proper bond or undertaking approved by the Secretary. INA Section 235 addresses the inspection of applicants for admission, including inadmissibility determinations of such applicants and INA Section 245 generally establishes eligibility criteria for adjustment of status to that of a lawful permanent resident.
Public Charge Proposed Rule Highlights
The Proposed Rule would consider a noncitizen likely at any time to become a public charge if he or she is likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. The Proposed Rule also would establish:
- How DHS proposes to identify the types of public benefits that would be considered as part of the public charge inadmissibility determination;
- General principles regarding consideration of current and past receipt of public benefits in public charge inadmissibility determinations
- Factors that DHS would consider in prospectively determining, under the totality of the circumstances framework, whether an applicant for admission or adjustment of status before DHS is inadmissible under the public charge ground.
- Changes to existing information collections submitted with applications for adjustment of status to that of a lawful permanent resident to include questions relevant to the statutory minimum factors.
- A requirement that all written denial decisions issued by USCIS to applicants reflect consideration of each of the statutory minimum factors, as well as the Affidavit of Support Under Section 213A of the INA where required, consistent with the standards set forth in the Proposed Rule, and specifically articulate the reasons for the officer’s determination.
The proposed regulation, if adopted as proposed, would implement the following major changes:
- Amend 8 CFR 212.18, Application for waivers of inadmissibility in connection with an application for adjustment of status by T nonimmigrant status holders. This section clarifies that T nonimmigrants seeking adjustment of status are not subject to the public charge ground of inadmissibility.
- Add 8 CFR 212.20, Applicability of public charge inadmissibility. This section identifies the categories of noncitizens who are subject to the public charge ground of inadmissibility.
- Add 8 CFR 212.21, Definitions. This section establishes key regulatory definitions: Likely at any time to become a public charge, public cash assistance for income maintenance, long-term institutionalization at government expense, receipt (of public benefits), and government.
- • Add 8 CFR 212.22, to clarify that evaluating the likelihood at any time of becoming a public charge is a prospective determination based on the totality of the circumstances. This section provides details on how the statutory minimum factors, as well as an Affidavit of Support Under Section 213A of the INA, if required, and current or past receipt of public benefits would be considered when making a public charge inadmissibility determination. This section also states that the fact that an applicant has a disability, as defined by section 504 of the Rehabilitation Act (Section 504), will not alone be a Start Printed Page 10572 sufficient basis to determine whether the noncitizen is likely at any time to become a public charge. This section also includes categories of noncitizens whose past or current receipt of public benefits will not be considered in a public charge inadmissibility determination.
- Add 8 CFR 212.23, Exemptions and waivers for public charge ground of inadmissibility, which will provide a list of statutory and regulatory exemptions from and waivers of the public charge ground of inadmissibility.
- Amends 8 CFR 245.23, Adjustment of aliens in T nonimmigrant classification, which will clarify T nonimmigrants seeking adjustment of status are not subject to the public charge ground of inadmissibility.
The Proposed Rule differs from the previous regulation DHS published on August 14, 2019 on the pubic charge rule, which is no longer in effect. Rather than continuing Trump Administration efforts to defend the prior regulation against various litigation challenges then pending before the United States Supreme Court, the Biden Administration announced its withdrawal of the prior regulation to reconsider its provisions, resulting in the termination of that litigation. The proposed regulation reflects the results of the Biden Administration’s new approach to the rule making, which many perceive as more generous to noncitizen applicants in various respects. The Preamble to the proposed regulation reflects the Biden Administration’s view that the 2019 Final Rule expanded DHS’s definition of “public charge,” in a manner ‘associated with widespread indirect effects on noncitizens were not even subject to the public charge ground of inadmissibility, such as U.S. citizen children in mixed-status households. According to the Preamble to the Proposed Rule, although the 2019 Final Rule imposed heavy paperwork burdens while the 2019 Final Rule was in place DHS only denied 3 of the 47,555 applications for adjustment of status to which the rule was applied and DHS subsequently reopened and approved those 3.
Potential Implications On Employers, Health Care Organizations & Others
The implications of the Proposed Rule vary depending on the circumstances. Because the Proposed Rule will de-emphasize prior reliance of a noncitizen on certain assistance, it may make it easier for noncitizen employees and others who received assistance during the COVID-19 pandemic or under other circumstances in the past to renew their visa to remain in the U.S. This could be helpful to businesses that concerned about the loss of noncitizen workers or service providers who otherwise might be disqualified by the prior need for or receipt of public assistance or unwilling to come or stay in the U.S. because of the disqualification of family members under the public assistance criteria.
The easing of the standard also may impact health care, community, religious, charitable or other organizations concerned that certain populations of noncitizens they service could be denied entry or forced to leave the United States.
Meanwhile, federal, state and local governments, community agencies and others also should assess the program eligibility and cost implications of the Proposed Rule and begin planning accordingly.
To review the Proposed Rule, a summary of the proposed regulation and history of the public charge rule and other details, see here. Persons interested in commenting on the proposed regulation should submit their comments electronically on or before April 25, 2022 following the instructions here.
More Information
For additional information about the requirements or concerns discussed in this article, republication or other related matters, please contact the author, employment lawyer Cynthia Marcotte Stamer via e-mail, via telephone at (214) 452 -8297 or on LinkedIn.
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About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for management work, coaching, teachings, and publications.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. Her day-to-day work encompasses both labor and employment issues, as well as independent contractor, outsourcing, employee leasing, management services and other nontraditional service relationships. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with all aspects for workforce and human resources management, including, recruitment, hiring, firing, compensation and benefits, promotion, discipline, Form I-9 and other compliance, trade secret and confidentiality, noncompetition, privacy and data security, safety, daily performance and operations management, internal controls, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.
Well-known for her extensive work with health and life sciences, insurance, financial services, technology, energy, manufacturing, retail, hospitality, governmental and other highly regulated employers, her nearly 30 years’ of experience encompasses domestic and international businesses of all types and sizes.
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other concerns by her service as a management consultant, business coach and consultant and policy strategist as well through her leadership participation in professional and civic organizations such her involvement as the Vice Chair of the North Texas Healthcare Compliance Association; Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Gulf Coast TEGE Council Exempt Organization Coordinator; a founding Board Member and past President of the Alliance for Healthcare Excellence; former board member and Vice President of the Managed Care Association; past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; a member and policy adviser to the National Physicians’ Council for Healthcare Policy; current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee; current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section; Past Chair of the ABA Health Law Section Managed Care & Insurance Section; ABA Real Property Probate and Trust (RPTE) Section former Employee Benefits Group Chair, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative, and Defined Contribution Committee Co-Chair, past Welfare Benefit Committee Chair and current Employee Benefits Group Fiduciary Responsibility Committee Co-Chair, Substantive and Group Committee member, Membership Committee member and RPTE Representative to the ABA Health Law Coordinating Council; past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former member of the Board of Directors, Treasurer, Member and Continuing Education Chair of the Southwest Benefits Association and others.
Ms. Stamer also is a widely published author, highly popular lecturer, and serial symposia chair, who publishes and speaks extensively on human resources, labor and employment, employee benefits, compensation, occupational safety and health, and other leadership, performance, regulatory and operational risk management, public policy and community service concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.
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