The Public Charge Rule: a Q&A

by Protima Daryanani


As part of every Green Card (immigrant visa) petition foreign nationals must demonstrate they will be able to support themselves and not become “public charges.” Additionally, every time foreign nationals seek admission to the US, they must demonstrate that will not become “public charges.” A “public charge” is someone the United States believes is primarily dependent on the federal government to subsist. On September 22, 2018, the Department of Homeland Security (DHS) released an advance copy of the Notice of Proposed Rulemaking (NPRM) related to the public charge ground of inadmissibility.

The proposed rule significantly changes the definition of what it means to be considered a “public charge.” If implemented, this “public charge rule,” as it is generally known, “could be the most far-reaching immigration policy change made during Donald Trump’s time in office,” according to Stuart Anderson, executive director of the National Foundation for American Policy, a non-partisan public policy research organization focusing on trade, immigration and related issues.  

Arguing for why it’s necessary now, US Citizenship & Immigration Services (USCIS) states:

Self-sufficiency has long been a basic principle of United States immigration law. Since the 1800s, Congress has put into statute that individuals are inadmissible to the U.S. if they are unable to care for themselves without becoming a public charge and federal laws have stated that foreign nationals generally must be self-sufficient. Despite this history, public charge has not been defined in statute or regulations, and there has been insufficient guidance on how to determine if an alien who is applying for a visa, admission, or adjustment of status is likely at any time to become a public charge.

As part of its announcement, USCIS has also published a Q&A page addressing the proposed public charge rule. Additionally, Boundless, an immigration resource that empowers families to navigate the immigration system, has a helpful guide to the proposed rule. Foreign nationals should consult with an experienced immigration attorney regarding how the proposed rule may affect their petitions or applications for a Green Card or nonimmigrant visa.

What is the current law regarding “public charges”?

Congress established that the US government can refuse a Green Card to anyone who “is likely at any time to become a public charge,” but hasn’t defined what “public charge” means. In 1999, immigration officers adopted the guiding principle that a public charge is someone “primarily dependent on the government for subsistence,” by either 1) using public cash assistance for income, or (2) institutionalization for long-term care at government expense. In particular, this included:

  • Supplemental Security Income (SSI);

  • Temporary Assistance for Needy Families (TANF), typically known as “welfare”;

  • State and local cash assistance, often called “General Assistance”;

  • Medicaid or other programs supporting long-term institutionalized care, including a nursing home or mental health institution.

Under this existing policy, and as Boundless explains, few immigrants have been denied Green Cards on these public-charge grounds, for two primary reasons:

First, Congress has already barred most immigrants from using welfare, so prior use of these benefits is out of the question. Second, Congress requires that most green card applicants have a financial sponsor — typically a U.S.-citizen spouse or other family member — who can demonstrate sufficient income to prevent future dependency on government benefits. That income threshold is defined in statute as 125% of the Federal Poverty Guidelines, currently $20,575 for most couples without children.

For the past twenty years, most visa applicants have been able to avoid the “public charge” determination by submitting a financial sponsor’s I-864, Affidavit of Support, along with evidence that shows that the statutory income threshold has been met.

What does the proposed rule change?

Under the new rule, DHS would expand the definition of “public charge,” so that Green Card and other visa applicants can be denied not only for being “primarily dependent on the government for subsistence” (which is the current standard) but also for using “one or more public benefits” in the past or being “likely at any time” to receive these benefits in the future. Under this broader definition, DHS suggests the following criteria for denying a Green Card or nonimmigrant visa application:   

  1. Prior use of almost any government benefit—the new rule proposes to dramatically expand the definition to include a much wider range of common government benefits;

  2. Likelihood of using government benefits in the future—under the rule, DHS immigration officers would examine an expanded number of specific factors when determining whether or not a visa applicant is likely to become a “public charge” in the future; and

  3. Insufficient financial resources—even if foreign nationals have never used government benefits in the past and can prove they are not likely to in the future, applicants must still show sufficient personal financial resources by filing a “Declaration of Self-Sufficiency” (Form I-944) with most Green Card and nonimmigrant visa applications.

Who is subject to the public charge determination?

The proposed rule applies to individuals who are seeking an immigrant or nonimmigrant visa abroad, as well as those seeking admission to the US, or those seeking to adjust their status in the US. The proposed rule also applies to individuals in the US in nonimmigrant status who are seeking to either extend their stay or change their status in certain situations. Most lawful permanent residents are not subject to inadmissibility determinations, including public charge inadmissibility; thus, lawful permanent residents who apply for citizenship would not be subject to inadmissibility determinations, including a public charge inadmissibility determination.

Who is exempt from this rule?

Refugees, asylees, and Afghans and Iraqis with special immigrant visas are exempt from the public charge rule. USCIS has a full list of exemptions

Which benefits are specified in the public charge inadmissibility determinations?

The new proposed rule adds the following public benefits which would trigger a “public charge” ground of inadmissibility. In order words, if foreign nationals utilize any of the following benefits, they may not be able to obtain the Green Card or visa for which they applied:

  • Cash assistance for income maintenance;

  • Medicaid with limited exceptions;

  • Medicare Part D Low Income Subsidy;

  • Supplemental Nutrition Assistance Program (SNAP, or food stamps);

  • Any benefit for institutionalization for long-term care at government expense,

  • Section 8 Housing Choice Voucher Program;

  • Section 8 Project-Based Rental Assistance; and

  • Public Housing.  

USCIS explains: “The covered benefits generally represent the largest Federal programs for low-income people by total expenditure that address basic living needs such as income, housing, food, and medical care.”

What period of benefits receipt is considered?

The government would consider current and past “receipt of included public benefits above the designated thresholds as a factor in the totality of the circumstances” as well as current receipt of public benefits or past receipt above the designated threshold within the past thirty-six months preceding application submission.

Whose benefits are considered?

The government would review the direct receipt of benefits by the individual foreign national applicant, not dependents or other household members.

Which benefits are not considered?  

The rule does not include emergency medical assistance, disaster relief, national school lunch programs, foster care and adoption, and head start.       

How will DHS determine whether someone is likely to become a public charge for admission or adjustment purposes?

This will be determined by examining the mandatory factors set forth in INA section 212(a)(4) and making a “determination of the applicant’s likelihood of becoming a public charge at any time in the future based on the totality of the circumstances.” A USCIS officer will consider: age; health; family status; assets, resources, and financial status; and education and skills.

What factors will heavily weigh in favor of a determination that a foreign national is likely to become a public charge?

Factors that would “generally weigh heavily in favor of a finding that an alien is likely to become a public charge” include if the foreign national is:

  • Authorized to work, but not able to demonstrate current employment or show employment history or future employment and is not a full-time student;

  • Currently receiving or approved to receive one or more of the designated public benefits above the threshold;

  • Has received “one or more of the designated public benefits above the threshold within the 36 months immediately preceding the foreign national’s application for a visa, admission, or adjustment of status”;

  • Has been diagnosed with a medical condition likely to require extensive medical treatment or institutionalization, or if the foreign national is uninsured and not able to obtain private health insurance; or

  • Has been previously found inadmissible or deportable based on being a public charge.

What factors would weigh heavily against a determination that a foreign national is likely to become a public charge?

One factor that would weigh heavily is if the foreign national has “financial assets, resources, and support” of at least 250 percent of the Federal Poverty Guidelines for a household of the foreign national’s household size or if the foreign national is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the foreign national’s household size.

When does this rule go into effect? 

DHS notes that this is a proposed rule, not a final rule. After the sixty-day public comment period, DHS will consider the comments and possibly make changes over an approximately six-month (or more) time period, and then issue a final public charge rule that will include an effective date. The rule is likely not go into effect until mid-2019 at the earliest. Until the final rule is in effect, USCIS will apply the current public charge policy (i.e., the 1999 INS Interim Field Guidance).

Conclusion

The proposed rule has proven controversial, and many immigration advocates have criticized it. “This is an attack on immigrant families and an attempt to make our immigration system a pay-to-play system where only the wealthy need apply,” Jackie Vimo, a policy analyst with the National Immigration Law Center, a Washington-based group that defends low-income immigrants, tells the New York Times. “This is a radical transformation of our immigration, and does a runaround on Congress.”