On October 10, 2018, the Trump administration proposed a public charge rule change — a regulation to dramatically broaden the “public charge” test that has been a part of federal immigration law for decades. After receiving hundreds of thousands of comments and making some modifications, the Department of Homeland Security (DHS) published the final regulation on August 14, 2019, but several courts halted the rule from taking effect. However, although the Supreme Court of the U.S. (SCOTUS) has not ruled on the merits– on the legality of the rule– it ordered on January 27, 2020, that the rule be implemented nationwide, while pending litigation makes its way through the lower courts. The pending cases are on a fast track, and could be decided within a few months, possibly resulting in renewed injunctions, which would again prevent DHS from implementing the rule. Until then, DHS’ U.S. Citizenship and Immigration Services (USCIS), which administers immigration benefits such as issuing green cards and work authorization, has announced that the rule goes into effect on February 24, 2020.
We know this rule can be confusing. However, before you choose to stop utilizing public benefits, please read on and see if the services you receive are subject to the public charge rule. The information below is for general educational purposes and is not legal advice.
What is “public charge?” Does it apply to all immigrants?
For many years the “public charge” test has been used to identify people who may depend on government benefits as their main source of financial support for purposes of determining their eligibility to secure a green card. The new rule is a shift from determining if someone has been relying financially primarily on the government (usually in the form of cash-assistance), to determine if they have used any public benefits. If the government determines that someone is likely to become a “public charge,” even if they have not used public benefits in the past, that person can still be refused permission to change their status, such as from a student to a worker, extend their status, and be refused a green card. The Department of State has also made public charge policy changes that impact those seeking to enter the U.S. on both a temporary and long term basis. This document provides an overview of just the changes made by the DHS/USCIS rule.
What programs will be considered under the new public charge rule?
The expanded grounds under the new rule include, as summarized by DHS’s U.S. Citizenship and Immigration Services (USCIS):
- Any federal, state, local, or tribal cash assistance for income maintenance (including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and general assistance programs. (However, state, local and tribally funded non-cash programs are not counted).
- Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
- Housing Assistance (Federal Public Housing or Section 8 Housing Vouchers and Section 8 project-based rental assistance)
- Federally funded Medicaid (except for coverage of emergency services, children under 21, and pregnant women (including 60 days postpartum))
There are limited exceptions for those not subject to the above-listed grounds, as summarized by USCIS, including:
- Immigrants enlisted in the U.S. armed forces, serving in active duty, or in any of the Ready Reserve components of the U.S. armed forces, and their spouses/children (but not veterans or their relatives);
- Children, including adopted children, who will acquire U.S. citizenship under INA 320, 8 U.S.C. 1431 or INA 322, 8 U.S.C. 1433;
- The receipt of Medicaid for emergency services, children under 21 years of age, or pregnant women and for 60 days postpartum.;
- Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;
- School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law; and
- For those who received benefits while in a status exempt from a public charge determination (such as refugees, VAWA self-petitioners, etc.), they will be exempt from new public charge criteria if applying for admission into the U.S. or LPR status under a different pathway.
- Cash payments at the state, local, or tribal level so long as the payment is not income maintenance but rather is tied to a specific need (like energy assistance or emergency disaster relief).
If I’m found to be a public charge, does that mean I won’t be able to extend, change, or adjust my status?
If you’re found to be a public charge, one may request to pay a public bond to cure the public charge issue (such as due to income, a serious health condition, etc.), but only in the context of applications for adjustment of status (applying for a green card). The new rule sets the public bond minimum at $8,100. However, if the individual uses any public benefits included in the public charge determinations in the new rule, “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),” (s)he would be at risk of losing this bond.