Trump administration published the final version of the new ‘public charge rule’ officially called as “Inadmissibility on Public Charge Grounds” that is expected to have significant impact on most types of US visa holders and future Green Card Applicants. USCIS announced that Public Charge rule is effective from Feb 24th, 2020 after judgment from Supreme Court in favor of implementing the rule. We have published an article with the summary of Public Charge rule, its Impact for H1B, H4, L1, L2 visa holders. In this article, we will focus on the new “public charge rule” impact to F1 Students studying in US, OPT and STEM OPT holders working after graduation and address common FAQs on the same.
We will not cover any basics or summary of the public charge rule in this article. We will directly dive into its impact to F1 students. If you do not know what ‘Public Charge Rule’ stands for, how someone is determined as public charge, please read Public Charge Rule Summary, Impact to H1B, H4, L1, we have covered all the details in that article.
The general public charge rule is that, if anyone, unless exempted, uses any of the listed public benefits in the new rule for more than 12 months in aggregate within a 36-month period, they will be considered as “public charge” and inadmissible on public charge grounds. If they use two benefits in a month, that is treated as 2 months and added towards the total 12 months aggregate.
Now, let’s start with basics for students, does it really apply to F1 Students? What does the final rule say?
Public Charge Rule Applicable to F1 Students, F2 Dependents for Extensions, COS ?
Yes, the ‘new public charge rule’ applies to F1 students, see below screenshot from the official final rule text. It clearly tells that F1 students and F2 depends are subject to the public charge review condition, when they apply for extension or change of status using for I-539 form.
Also, during the F1, F2 visa stamping at consulate, the consular officer determines, if the F1 or F2 would become a public charge. They may look at F1 visa, F2 applicant’s bank statements, assets, etc. to verify that you have funds to support your education, support dependents, if any. They can deny your visa under INA section 212(a)(4) on public charge. Check Travel.State.gov Denials info
Now, let’s look at the impact of the new public charge rule and what it means for F1 status holders, F2 visa holders.
Impact of New Public Charge Rule for F1 Students, F2 Dependents
The final rule lists down few scenarios where the public charge rule would be applicable for F1 Students and F2 dependents. Below is the list:
F1, F2 Visa Extensions, Change of Status (COS) Applications:
USCIS will look for proof of sufficient funds during Change of Status to F1 or Extensions filed ( due to re-instatement or if have date specific admission) using form I-539 . This is not new, USCIS always checks for the financial support documents for amount on I-20 to prove that students have funds to support their education and living expenses. In addition, with the new public charge rule, now they will also check if the student has not used any of the public benefits for aggregate of 12 months during the last 36 months of their F1 status to determine, if they would become a public charge. DHS emphasized and clarified a comment raised by users saying that students can only work 20 hours and they cannot show proof of self-sufficiency with the money they make, stating that it is responsibility of the student to prove that they have enough funds. See below text from rule document.
Employment History for F1 Students :
There were comments saying that Students may not work and they will not have employment history and may be considered for public charge during COS to work visa like H1B or even applying for adjustment of status. USCIS clarified that they do NOT require a student to have employment history to determine for public charge. They clarified that students would acquire skills and that will help them in the overall application and be a positive factor and employment history is not the only factor they look at, they look at education and skills factors that will be positive. See below text from rule document.
250 Percent FPG for F1 Students :
There were comments saying that 250 percent Federal Poverty Guidelines (FPG) for F1 students , F2 is very hard to meet for many couples planning to use adjustment of status and many job positions do not even help get to get that level as they graduate. USCIS clarified that 250 percent FPG is not a requirement but is one of the considerations. They primarily look for the public benefits usage in the last 36 months. See below rule text.
Cost to US Employers, Labor Market Composition :
Some commenters expressed concern that the search cost for US employers would go up as they will no longer be able to hire low wage workers to meet the FPG limits and they will have to do their own public charge determination with the wage. Also, they say it will change labor market composition and they would have challenges for COS for F1 students to H1B or doing adjustment of status with the new rule. DHS clarified that this rule is not intended to change the labor composition, all of them can still file COS, adjustment of status applications and this public charge rule primarily looks at the public benefits used in the last 36 months to determine, if they would be a potential public charge.
New I-539 Forms for F1 Students with Questions on receipt of Public Benefits:
USCIS has released new forms for I-539 that is used by F1 and F2 visa holders for extensions and Change of status. It has new questions that are related to receipt of public benefits. The F1 and F2 holders need to prove that they have not used the public benefits for over 12 months in a 36 month period. Also, if requested, they may need to file form I-944, called as “Declaration of Self-Sufficiency” to prove that they do not become public charge as well as needed. Read detail article on How USCIS uses Form I-944 to determine Public Charge based on various factors. If using I-539A form, that is used by I-539 co-applicants they need to answer related questions for the same.
OPT, STEM OPT Holders working on F1 Visa :
There is no explicit mention of the OPT or STEM OPT programs and determination of public charge. Basically, OPT and STEM OPT students fall under F1 Students category and all the above listed aspects apply to them as well. They should not use any public benefits for a period of aggregate 12 months in a period of past 36 months.
FAQs for F1 Students on Public Charge Rule:
No, USCIS does not list in-state tuition as a public benefit, so it does not constitute for public charge determination. Also, in general, funding of TA, RA and GA position would pay for it in background, so, it is not really a public benefit.
No, USCIS does not list explicitly list subsidised health insurance used by F1 students as a public benefit. They do mention in comments that anything that is not listed as a public benefit in the definition section does not constitute a public benefit and cannot be used for public charge determination.
No, you would have paid for them as part of the University fee and it does not count as public benefit to determine as public charge.
What do you think of the impact of Public Charge Rule to F1 and F2 Students ? Share your thoughts, comments