On August 12, 2019, the Department of Homeland Security (DHS) made an announcement on the final rule regarding the public charge ground of inadmissibility as set forth at INA § 212(a)(4)(A). This announcement clearly defines the law to make sure that aliens who are seeking to either enter the United States or remain within the country permanently or temporarily are able to support themselves by relying on their own and their family’s and/or sponsors’ resources; that they will not at any time become a public charge. Those likely to become a public charge at any time will be inadmissible to the United States. This rule will take effect on October 15, 2019.

According to the USCIS, this Public Charge Final Rule amends DHS regulations by prescribing how DHS will determine whether an alien is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act. The final rule addresses U.S. Citizenship and Immigration Services (USCIS) authority to permit an alien to submit a public charge bond in the context of adjustment of status applications. The rule also makes nonimmigrant aliens who have received certain public benefits above a specific threshold generally ineligible for an extension of stay and change of status.

Like with all rules, there are certain categories of applicants to whom this rule does not apply. Among others, it includes Uvisa, Tvisa applicants, Uvisa, Tvisa nonimmigrants seeking to adjust their status and VAWA self-petitioners. Per 8 C.F.R. § 212.23(a), persons in these categories are explicitly exempt from the final public charge regulation. To further explain:

T-Visa

Individuals applying for T nonimmigrant status who have a prima facie case for eligibility and T nonimmigrants applying for an adjustment of status or seeking other immigration benefits are generally exempt from the public charge ground of inadmissibility under section 212(a)(4)(E) of the Act, 8 U.S.C.1182(a)(4)(E). T nonimmigrants may apply to adjust status to lawful permanent resident either after 3 years as a T nonimmigrant or after the investigation or prosecution of the trafficking is complete, whichever happens earlier. Such applicants of an adjustment of status under section 245(i) of the Act are not subject to the public charge ground of inadmissibility. For this exemption to apply, the T visa holder must be in a valid T status at the time of filing for an adjustment of status and while the application is being adjudicated.

DHS had incorrectly stated in its Notice of Proposed Rulemaking that T nonimmigrants are subject to the public charge ground of inadmissibility when applying to adjust status. This error has been corrected in the final rule which clearly provides that T nonimmigrants are exempt from the public charge ground of inadmissibility when applying to adjust status under INA § 245(i) or when they apply for another immigration benefit as long as they maintain their T status when filing for adjustment of status and while the application is being adjudicated. The final rule states that, when required to do so under INA § 212(a)(4)(D), for certain employment-based adjustments, T nonimmigrants must still submit affidavits of support to overcome the public charge ground of inadmissibility.

UVisa

Applicants for the U visa status or U nonimmigrants applying for an adjustment of status are exempt from the public charge ground of inadmissibility. Under INA § 245(m), a U nonimmigrant can apply to adjust status after meeting requirements, including being physically present in the United States in U nonimmigrant status for at least 3 years. As long as U nonimmigrants continue to maintain their U status both when filing their adjustment applications and while the application is being adjudicated, the final rule states that the U nonimmigrants are not subject to the public charge ground of inadmissibility when applying to adjust their status under INA § 245(m) or any other provision of the law. The final rule states that when required to do so under INA § 212(a)(4)(D), for certain employment-based adjustments, U nonimmigrants must still submit affidavits of support to overcome the public charge ground of inadmissibility.

VAWA Self-Petitioners

VAWA self-petitioners are exempt from the public charge ground of inadmissibility under INA § 212(a)(4)(E)(i). The final rule recognizes this provision. The final rule does exert that, when required to do so under INA § 212(a)(4)(D), for certain employment-based adjustments, VAWA self-petitioner must still submit affidavits of support to overcome the public charge ground of inadmissibility. The final rule confirms that domestic violence survivors are not subject to public charge determination when filing Form I-360, VAWA Self-Petition or Form I-485, Adjustment of Status.

NOTE:

When a T nonimmigrant or a U nonimmigrant or VAWA self-petitioner applies for an immigration benefit in the future and that benefit is subject to a public charge determination, the final rule says that DHS will not consider any public benefits received by the applicant while in the exempt status. If an individual from one of the above categories receives public benefits after October 15, 2019, when the regulation goes into effect, it cannot be held against them in the future in case they come under a public charge determination.