Public Charge Rule Change: Frequently Asked Questions

Overview

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.

Frequently Asked Questions

Generally, only benefits received by you as the immigration benefits applicant or beneficiary — not your family members — are considered. Children’s or family member’s use of benefits or program enrollment is not factored into your individual public charge determination. 

The government should not consider your children’s use of non-cash benefits (e.g., health insurance or food stamps) in your own application for status, even if you signed for such benefits on your child’s behalf.  (However, please note that benefits such as for housing or SNAP received by immigrant children will be taken into account for the child if the child is applying for admission or green card status).

We recommend that whatever your circumstances, that you speak to an immigration attorney or DOJ-accredited representative about your case.

If you or your family are receiving assistance for medical care or to pay for food or rent, consider consulting with a legal services provider before stopping receipt of any such benefit. While the final rule does not go into effect until February 24, 2020, (and thus, any benefits received prior to Feb. 24 that were not included in the new rule— anything other than cash or long-term institutional care– won’t be considered in USCIS’ public charge determination. .

USCIS explains that a public charge determination is more likely if an immigrant “has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after February 24,2020 (emphasis added).” In other words, certain benefits can be considered even if received or merely approved prior to February 24.

Not necessarily. The final rule indicates that the public charge test does not apply in naturalization proceedings. 

However, USCIS can still look at how somebody secured their permanent residency during review of their naturalization application and potentially make a retroactive public charge determination. 

Every case is different so we encourage you to reach out to a lawyer or an organization who can answer your questions directly.

This proposal would not change current eligibility requirements for public benefits programs. However, it changes which of those programs are considered in public charge determinations for immigration purposes, and some benefits for which immigrants are legally eligible could still have a negative impact on a public charge assessment.

The expansion of the public charge test goes into effect on February 24, 2020. USCIS indicates that it “will only consider public benefits received on or after Feb. 24, 2020,” and that the final rule will only apply to applications submitted on or after February 24, 2020. However, use of cash assistance programs or long-term institutional care before February 24, 2020, will still be considered in public charge determinations.

It is advised that anyone applying for adjustment of status, to change or extend their status, or those applying from abroad who have used public benefits after the new rule goes into effect consult an immigration attorney before proceeding. 

It is important to read the news and stay updated on the latest developments so that you can make informed decisions for yourself and your loved ones. We recommend signing up for “Protecting Immigrant Families” (PIF), a campaign of organizations committed to fighting for immigrant families, email updates.

The U.S. government’s policy about public charge has already changed for people who are seeking a visa or a green card at consular offices outside of the U.S. In January 2018, the U.S. State Department revised its Foreign Affairs Manual (FAM) to instate new policies on public charge. The FAM provides guidance to government officers at U.S. embassies and consulates who decide whether to grant a person permission to enter the U.S.

According to recent State Department data obtained by Politico, the recently changed “public charge” policy being implemented by State shows a drastic increase in the number of visas denied on public charge grounds; beginning in fiscal year 2019 through July 29, already 12,179 visas were denied on public charge, compared to 1,033 people who were denied on public charge grounds in all of fiscal year 2016, over a 1,000% increase.

If you are seeking a visa to enter the U.S. before February 24, 2020, you will be subject to the updated public charge policies in the FAM, and will have to show why you should not be deemed likely to become a public charge under those requirements.

The public charge test applies generally to everybody except for the following: 

  • U.S. citizens
  • Refugees
  • Asylees
  • Trafficking victims (T visa)
  • Crime victims (U visa) 
  • Domestic violence survivors (VAWA)
  • Certain Amerasians
  • Special Immigrant Juveniles (SIJ) visa holders
  • Lautenberg parolees and those eligible for immigration relief under the Cuban Adjustment Act (CAA)
  • Nicaraguan & Central American Relief Act (NACARA)
  • Haitian Refugee Immigration Fairness Act (HRIFA)
  • Those applying for or re-registering for Temporary Protected Status (TPS)**
  • Deferred Action for Childhood Arrivals (DACA) applicants.** 
  • Afghans and Iraqis with special immigrant visas, 
  • Certain nonimmigrant government officials and other limited categories. 
  • Applicants for and those already holding an S visa may apply for a waiver 

If you are in any of these categories, you can use any government programs you are eligible for — including cash aid, health care, food programs, and other non cash programs — without worrying that doing so will harm your chances of getting a green card or improving your immigration status.

**While public charge does not apply to DACA or TPS recipients for purposes of renewing or securing such status, if DACA or TPS holders have an independent pathway to green card status (such as marrying a U.S. citizen or getting sponsored by an employer), because they are not expressly exempted under the rule, they are not exempt from the public charge assessment in pursuing their green card, and thus it is recommended that legal representation is sought. **

Green card holders trying to renew their status will not be impacted by public charge because the test only applies to new applicants. However, if you have a green card and leave the country for longer than six months, or in other limited circumstances, you may be subject to a public charge test when you attempt to re-enter the country.

We suggest that, before you leave the U.S., you discuss your travel plans with an immigration attorney or DOJ-accredited representative.

U.S. citizens, refugees, asylees, trafficking victims (T visa), crime victims (U visa), domestic violence survivors (VAWA), certain Amerasians, Special Immigrant Juveniles (SIJ) visa holders, Lautenberg parolees and those eligible for immigration relief under the Cuban Adjustment Act (CAA), Nicaraguan & Central American Relief Act (NACARA), or the Haitian Refugee Immigration Fairness Act (HRIFA), those applying for or re-registering for Temporary Protected Status (TPS), and Deferred Action for Childhood Arrivals (DACA) applicants, are not subject to public charge. Also not subject to public charge are Afghans and Iraqis with special immigrant visas, certain nonimmigrant government officials, and other limited categories. Applicants for and those already holding an S visa may apply for a waiver (See pp. 820-825 for a comprehensive list of exempted and waiver-eligible categories).

The rule does not interpret or expand the public charge ground of deportability. However, USCIS can still look at how somebody secured their permanent residency during review of their naturalization application and potentially make a retroactive public charge determination. Under current law, a person who has become a public charge can be deported only in extremely rare circumstances. The Department of Justice is currently in the process of proposing a separate rule that addresses this ground to be more consistent with that of USCIS and State’s policy changes.

If you’re applying for a green card, or to extend or change your temporary nonimmigrant status within the U.S., a USCIS adjudication officer will conduct the evaluation while processing your application to adjust, extend or change status. 

If you’re applying for a visa from abroad (including returning to the U.S. after leaving to complete the green card application process), the consular office (under the management of the U.S. State Department) will assess if you are a public charge as part of the visa application process.

To find an organization near you, please visit our database on Informed Immigrant, where you can search based off of your zip code.