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The Biden Administration’s New Public Charge Regulations

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“The new public charge regulations are an important step in ensuring those eligible for assistance receive it without jeopardizing a family member’s or their own #immigration journey.”

On September 8, 2022, the Biden Administration published new public charge regulations, ensuring that immigrants from all walks of life are welcomed to the United States. The new regulations codify long- standing public charge policies that are reasonable, fair, and legally sound.

Under the INA, noncitizens are inadmissible and therefore 1) ineligible for a visa, 2) ineligible for admission, and 3) ineligible for adjustment of status, if, in the opinion of DHS (or the Department of Justice (DOJ) or consular officers of the Department of State (DOS), as applicable), they are likely at any time to become a public charge. Although the statute does not provide a definition for the term “public charge,” it does provide that in making an inadmissibility determination, administering agencies must, at minimum, consider “the alien’s age; health; family status; assets, resources and financial status; and education and skills.”

On August 14, 2019, DHS issued a rule on the public charge ground of inadmissibility, which is no longer in effect. This rule expanded DHS’ definition of “public charge” and imposed a heavy direct paperwork burden on applicants and DHS officers. The 2019 Final Rule has been associated with widespread collateral effects, particularly with respect to those who were not even subject to the public charge ground of inadmissibility, such as U.S. citizen children in mixed- status households. Under the new rule, DHS has implemented section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), “in a manner that will be clear and comprehensible for officers as well as for noncitizens and their families…and will lead to fair and consistent adjudications, thereby mitigating the risk of unequal treatment of similarly situated individuals.” The new rule does not include certain aspects of the 2019 Final Rule that in DHS’ view caused undue fear and confusion.

The revisions take into account real- world insight and feedback from immigration practitioners and clients regarding their own experiences and real- life situations. American Immigration Lawyers Association (AILA) President opined: “Research and anecdotal evidence showed us that the public charge regulation caused such fear among immigrants who sought to legally apply for a green card that many chose to forego health care and vital economic support. Family members eligible for assistance didn’t receive that help because of deep concern that it would mean an end to their American Dream. These changes to simplify and de-mystify the rule will truly change lives across our nation.”

Click here to see the update.

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