Department of Homeland Security to Begin Implementing Public Charge Rule Starting February 24, 2020

On February 24, 2020, the U.S. Department of Homeland Security (DHS), which includes U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP), will begin implementing the “public charge rule”. The implementation of this rule will require ISSS to list information on form I-129 that was not previously required.

Background

Under U.S. immigration law, a foreign national who is considered likely to become a "public charge" is inadmissible, and therefore will not be issued a U.S. visa, granted admission to the United States, or allowed to adjust status to that of a permanent resident. The new "public charge" rule redefines public charge to mean a foreign national who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). The rule also expands the types of programs considered as public benefits.

What is a Public Benefit?

In addition to cash assistance for income maintenance, “public benefit” will now include the following:

• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF)
• Supplemental Nutrition Assistance Program (SNAP)
• Section 8 Housing Assistance under the Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance
• Subsidized Public Housing
• Federally funded Medicaid (with certain exclusions)

In applying for an extension or change of nonimmigrant status, USCIS will look to see whether the applicant has received the designated benefits for more than 12 months in the aggregate within the 36-month period since being granted the nonimmigrant status that the applicant wishes to extend or change, up until the time of adjudication of the application. ISSS will need to list any and all of these benefits that have been received by the potential employee on form I-129 when filing an H-1B petition.

This rule only applies to the DHS, which includes the USCIS and CBP. The U.S. embassies and consulates, however, which are responsible for issuing nonimmigrant visas, fall under the jurisdiction of the U.S. Department of State (DOS). Accordingly, this rule redefining the public charge provisions does not apply to visa applications. However, the DOS announced its own new public charge rule in October 2019. There is no word yet on when the DOS public charge rule will go into effect.

Conclusion

Based on these changes, Penn ISSS will be requesting information from all H-1B employees before preparing an initial or extension H-1B petition. Your cooperation is appreciated as we work to comply with applicable immigration laws.