By Stephen Payne, Policy and Federal Relations Staff

A proposed rule by United States Citizenship and Immigration Services (USCIS) could have ramifications for Title IV-eligible noncitizens despite the fact that education programs are specifically excluded. The proposed rule, published on Wednesday in the Federal Register, would require consideration, at the time a noncitizen seeks admission to the United States or seeks adjustment, extension, or change of immigrant or nonimmigrant status, of the receipt and/or use of public benefit programs as a determinant of whether they could cause strain on government resources, also known as “public charge inadmissibility.”

Adjustment of status involves the process of becoming a permanent resident (green card holder), while extension or change of status might include renewal of an expired visa or a change from one visa type to another. Those individuals determined to be a potential strain on resources could have their admission to the U.S. or their adjustment or change of status application denied on “public charge” grounds.

The proposed rule as currently written excludes the federal student aid programs and other education benefits; however, the scope and publicity surrounding the proposed rule change may cause Title IV-eligible noncitizens to reject federal student aid dollars or avoid completing the FAFSA in the first place out of misunderstanding or fear of what the final rule might contain when it is issued.

The proposed rule by USCIS, which falls under the Department of Homeland Security (DHS), would redefine the term “public charge,” which appears in the Immigration and Nationality Act (INA). As justification for this rule, USCIS points to language adopted by Congress and signed into law by then-President Clinton in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193). “Self-sufficiency,” the law says, “has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”

Currently, “non-cash benefits... are not subject to public charge consideration,” according to a USCIS fact sheet. The proposed rule would expand public charge consideration to additional cash and non-cash benefit programs, such as SSI, SNAP, TANF, subsidized housing, and Medicaid, among others, but would not include education programs, according to the proposed rule.

Specifically, the proposed rule states that the public charge “definition would not include social insurance programs such as worker’s compensation and non-cash benefits that provide education, child development, and employment and job training.” The rule goes on to say that “DHS believes that exclusion of education-related benefits is justifiable in the interest of administrability (e.g., many such benefits are received indirectly through schools).”

While education-related benefits are excluded under the proposed rule, the Federal Register entry notes that “DHS welcomes comment regarding whether it should expand the list of designated public benefits in a final rule” during the public comment period and that “any such expansion would be prospective in nature (i.e., not effective until following publication of a final rule)”. USCIS will release a final rule following a 60-day comment period, which ends on Dec. 10, 2018.

NASFAA will continue to monitor this rulemaking process and plans to join the higher education community in supporting the rule’s exclusion of education benefits. Members who have concerns about Title IV-eligible noncitizens not applying for or rejecting federal student aid should email NASFAA’s policy staff at [email protected].

Publication Date: 10/15/2018

Comments Disclaimer: NASFAA welcomes and encourages readers to comment and engage in respectful conversation about the content posted here. We value thoughtful, polite, and concise comments that reflect a variety of views. Comments are not moderated by NASFAA but are reviewed periodically by staff. Users should not expect real-time responses from NASFAA. To learn more, please view NASFAA’s complete Comments Policy.