New "Public Charge" Rule Takes Aim at Temporary Visa Holders

Receiving public benefits will now affect applications to extend or change nonimmigrant status.

** LEGAL UPDATE **

The Department of Homeland Security (DHS) published new rules on August 14, 2019 intended to restrict immigration by people who have received various types of need-based public benefits; in other words, who are likely to become a "public charge."

Normally, public charge rules are applied most strictly in cases of people applying for immigrant visas or green cards. This new rule also, however, covers people in the U.S. with a temporary visa or status ("nonimmigrants") who would like to change or extend their status and stay here longer.

The rule is set to go into effect on October 15, though lawsuits could end up blocking it, either temporarily or permanently.

Applications or petitions postmarked before October 15 will be considered under the old rules. Better news still for those making plans, receipt of public benefits before October 15 will not count.

Which Nonimmigrants Should Worry About New Public Benefit Rule

The issue for nonimmigrants requesting a change of status (for example, from B-2 visitor to F-1 student, or from F-1 student to H-1B temporary worker) or an extension of status is that DHS will begin looking at whether the person "has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they wish to extend or change, up until the time of adjudication of the extension of stay or change of status request.”

Past receipt of benefits is the only thing DHS will take into account. The agency will not, for instance, look at income levels or whether it thinks you might need public benefits in the future. If you haven't received any of the relevant public benefits during your time as a nonimmigrant after October 15, 2019, you will have nothing to worry about.

Also, the rule doesn't apply to the following visa or status types:

  • A-1 or A-2
  • C-2 or C-3
  • G-1, G-3, or G-4
  • NATO–1, NATO–2, NATO–3, NATO–4 (NATO representatives), or NATO–6
  • T
  • U, and
  • Enlisted members of the U.S. armed forces or who are serving in active duty or in the reserve component of the armed forces, and their spouse and children, if any.

Which Public Benefits Are a Problem

Under the new rule, “public benefits” that can affect a nonimmigrant's eligibility to change or extend status include:

  1. Federal, state, local, or tribal cash assistance for income maintenance, including:
    1. Supplemental Security Income (SSI)
    2. Temporary Assistance for Needy Families (TANF)
    3. Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance”)
  2. Supplemental Nutrition Assistance Program (SNAP)
  3. Section 8 Housing Assistance under the Housing Choice Voucher Program (run by HUD)
  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
  5. Medicaid, with exceptions, such as benefits received by people under age 21 and by pregnant women, and
  6. Public housing.

That might sound like it covers every type of aid possible, but it does leave out things like emergency medical assistance, disaster relief, national school lunch programs, food pantries and homeless shelters, various forms of student aid, Head Start, and more.

If you hope to stay in the U.S. past October 2019 and request a change or extension of status, and think you'll need any of the benefits listed above, consult an immigration attorney.

Effective Date: October 15, 2019