Public Charge Rule Update of July 20, 2023: Understanding Applicability and Exemptions
Title: Public Charge Rule Update of July 20, 2023: Understanding Applicability and Exemptions
Introduction
On July 20, 2023, the United States Citizenship and Immigration Services (USCIS) issued an important update to the public charge rule under the Immigration and Nationality Act (INA) 212(a)(4). The public charge ground of inadmissibility applies to applicants seeking a visa, admission, or adjustment of status in the United States. This blog explores the changes brought about by this update and outlines the categories of applicants subject to the public charge ground of inadmissibility, as well as those who are exempt.
Chapter 3 - Applicability
A. Applicants for Admission
The public charge ground of inadmissibility generally applies to applicants seeking admission as immigrants or nonimmigrants, unless they are specifically exempted. This ground is assessed by U.S. Customs and Border Protection (CBP) for applicants seeking admission to the United States.
- Nonimmigrants
Noncitizens applying for a nonimmigrant visa or admission to the United States are considered inadmissible if they are likely to become a public charge at any time. Department of State (DOS) consular officers evaluate nonimmigrant visa applicants, and eligible noncitizens may also apply for admission without a visa under certain programs.
- Immigrants
Noncitizens abroad with an approved immigrant visa petition may apply for an immigrant visa to enter the United States. DOS determines their eligibility for the visa, including whether they are subject to the public charge ground of inadmissibility.
- Certain Lawful Permanent Residents Returning to the United States
While lawful permanent residents (LPRs) are generally exempt from inadmissibility determinations, some LPRs may be subject to such assessments upon their return to the United States under specific circumstances.
B. Applicants for Adjustment of Status
The public charge ground of inadmissibility generally applies to most applicants seeking adjustment of status, except those who are specifically exempt.
The following table indicates which adjustment of status applicants are subject to the public charge ground of inadmissibility:
Family-Based Adjustment of Status Applicants Subject to the Public Charge Ground of Inadmissibility
- Spouses, children, and parents of U.S. citizens
- Unmarried sons and daughters of U.S. citizens and their children
- Spouses, children, and unmarried sons and daughters of LPRs
- Married sons and daughters of U.S. citizens and their spouses and children
- Brothers and sisters of U.S. citizens
- Fiancé(e)s of U.S. citizens
- Amerasians based on preference category, born on or after December 31, 1950, and before October 22, 1982
- Spouses, widows, or widowers of U.S. citizens
Employment-Based Adjustment of Status Applicants Subject to the Public Charge Ground of Inadmissibility
- Priority workers
- Professionals with advanced degrees or noncitizens of exceptional ability
- Skilled workers, professionals, and other workers
- Investors
Special Immigrant Adjustment of Status Applicants Subject to the Public Charge Ground of Inadmissibility
- Religious workers
- Certain employees or former employees of the U.S. government abroad
- Panama Canal Zone employees
- Foreign medical school graduates
- Retired employees of international organizations
- U.S. armed forces personnel
- International broadcasters
Other Adjustment of Status Applicants Subject to the Public Charge Ground of Inadmissibility
- Diplomats or high-ranking officials unable to return home (Section 13 of the Act of September 11, 1957)
- Persons born in the United States under diplomatic status
- Diversity visa immigrants
- Certain entrants before Jan. 1, 1982
- S (Noncitizen witness or informant)
C. Exemptions
Certain categories of applicants are exempt from the public charge ground of inadmissibility based on statutory or regulatory authority. These exemptions include:
- Asylees and refugees
- Amerasian immigrants at admission
- Afghan and Iraqi interpreters or Afghan and Iraqi nationals employed by or on behalf of the U.S. government
- Cuban and Haitian entrants at adjustment of status
- Applicants seeking adjustment under the Cuban Adjustment Act
- Nicaraguans and other Central Americans who are adjusting status to LPR
- Haitians who are adjusting status to LPR
- Lautenberg parolees
- Special immigrant juveniles
- Applicants for registry
- Applicants seeking temporary protected status (TPS)
- Certain nonimmigrant ambassadors, ministers, diplomats, and other foreign government officials, and their families
- Victims of human trafficking (T nonimmigrants)
- Victims of qualifying criminal activity (U nonimmigrants)
- Self-petitioners under the Violence against Women Act (VAWA)
- Certain battered noncitizens who are “qualified aliens” under PRWORA
- Applicants adjusting status who qualify for a benefit as surviving spouses, children, or parents of military members
- Noncitizen American Indians born in Canada
- Noncitizen members of the Texas Band of Kickapoo Indians of the Kickapoo Tribe of Oklahoma
- Nationals of Vietnam, Cambodia, and Laos applying under the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2001
- Polish and Hungarian Parolees
- Certain Syrian nationals
- Applicants adjusting under the Liberian Refugee Immigration Fairness (LRIF) law
- Any other categories of noncitizens exempt from the public charge ground of inadmissibility under any other law.
D. Categories of Noncitizens Exempt from the Public Charge Ground of Inadmissibility Who Must Still Submit Form I-864
Certain noncitizens applying to adjust status in an employment-based category are required to submit an Affidavit of Support Under Section 213A of the INA (Form I-864). This requirement applies even to some categories of noncitizens who are otherwise exempt from the public charge ground of inadmissibility.
In conclusion, the July 20, 2023 update to the public charge rule brings significant changes to the admissibility criteria for immigrants and nonimmigrants seeking visas, admission, or adjustment of status in the United States. Applicants should carefully review the new guidelines and seek legal advice if needed to understand their specific situation and eligibility for exemption.
Please note that this blog is for informational purposes only and does not constitute legal advice. The immigration landscape is complex and subject to change, so it's crucial to consult with a qualified immigration attorney for personalized guidance.
