What is the Public Charge Rule, and what does it mean for you?

September 23, 2020

Summary

The Public Charge Rule is a part of immigration law that makes it harder for immigrants to live, work, and travel in America. United States Citizenship and Immigration Services (USCIS) defines a "Public Charge" as an immigrant who is likely to become "primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.”

This guide explains everything you need to know about how the Public Charge Rule will affect your application. If you submit an application and the government rejects it for public charge reasons, they will not refund your filing fees. You also may not be able to apply again.

ImmigrationHelp.org can help you check your public charge risk level with our free Risk Estimator tool. We can also help you prepare your immigration paperwork for free. Click the green button above to get started, or read on to learn more.

This article is not legal advice, and is not intended to replace a lawyer. It's goal is to help you learn more about the public charge rule before you apply.

Overview

Public Charge 101

9/22/2020 Update - The government is enforcing the new Public Charge Rule again effective immediately

The Trump administration began enforcing the new public charge role in February 2020 after the Supreme Court said that the rule was legal. In July 2020, a federal judge in New York put the rule on pause because of the financial challenges COVID-19 caused for many immigrants. The Trump adminsitration challenged the New York judge’s ruling. Yesteerday, September 22nd, 2020, the Supreme Court said that the administration could begin enforcing the new Public Charge Rule again. US Citizenship and Immigration Services and the Department of Justice began enforcing the rule again immediately.

Here’s what this means for you:

If you submitted an application for immigration status that required you to pass the Public Charge Test (primarily for Green Cards) between February 24, 2020 and October 13, 2020, and you did not include Form I-944 (if filing from inside the U.S.) or Form DS-5540 (if applying from outside of the U.S.), the government will probably ask you to submit one or the other of those documents. Be on the lookout for Request for Evidence (RFE) from them either by email or at the mailing address you listed on your application. If you do not supply these documents within the time frame they ask you to, they will deny your application and will not refund your application fees.
If you will be submitting an application for immigration status that requires you to pass the Public Charge Test soon, you will need to include either Form I-944 (if filing from inside the U.S.) or Form DS-5540 (if applying from outside of the U.S.) with your application. If you submit your application without the appropriate Public Charge form before October 13, 2020, the government will send you a request for evidence asking for one or the other of these forms. If you submit your application without the needed form after October 13, 2020, the government will reject your application.
If you submit (or have already submitted) an application for status that requires you to pass the Public Charge Test after February 24, 2020, you will have to meet the new public charge standards, which are much stricter than the old standards. If you do not meet these standards, the government will reject your application and will not refund your application fees.

ImmigrationHelp.org can help you see how the new Public Charge Rule affects you with our free Risk Estimator tool. We can also help you prepare your immigration paperwork, including the Public Charge Forms, for free. Click the button below to get started, or read on to learn more About the Public Charge Rule.

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What is the Public Charge Rule?

The public charge rule is an "inadmissibility" test that the federal government uses to decide if someone applying to visit or live in the United States is likely to depend on certain government benefits in the future. The government calls people who depend on these benefits "public charges." If the government thinks that an immigrant will become a public charge, they will not let that person visit or live in the United States. This is called the "public charge ground of inadmissibility."

There are actually two public charge rules from the agencies that control immigration — one from the Department of Homeland Security (DHS), and another from the State Department. These rules are almost identical, so we are going to refer to them together as "the public charge rule" for the rest of this guide.

The public charge rule has been around since 1882, but the government has never really enforced it. That changed on August 14, 2019, when the Trump administration told DHS and the State Department to make several rule changes. The new rule looks at two things:

The public benefits an immigrant has received in the past, and
The immigrant's ability to support themselves financially in the future.

Because these categories are so broad, legal experts think that the government will probably reject more than half of all new applications. Many people have tried to block the new rule in court, and the government has revised it several times. However, on February 24th, 2020, the U.S. Supreme Court said that the final rule was legal. The approved final rule had an immediate effective date, and the government is currently using it for all new immigration applications.

No one really knows how the government will enforce the new rule. DHS and the State Department published manuals that explain how they will review applications, but these manuals are not clear. We have read them several times to get an idea of what the government is looking for. The rest of this guide will cover what you need to know about the new public charge rule.

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Who does the Public Charge Rule apply to?

The public charge rule applies to all noncitizens. It affects immigrants and nonimmigrants in different ways.

Immigrants. People who are applying to live in the United States permanently.
Nonimmigrants. People who are applying to come to the United States temporarily

The government has stricter rules for immigrants than it does for nonimmigrants. This section will explore how these rules apply to different types of people who are trying to live in the United States.

A quick note - the public charge rule only applies when you are trying to get a new immigration status. For example, when you have a Green Card and apply to become a Citizen. It does not apply to Green Card holders who are not trying to become Citizens, and it does not apply to Citizens.

Does the Public Charge Rule affect people applying for Green Cards?

A Green Card is a type of "immigrant visa" because it allows you to live in the U.S. permanently. The public charge rule applies to almost all people who are applying for Green Cards (lawful permanent residence). This includes Green Cards based on:

Family status - a relationship to a U.S. Citizen or a Lawful Permanent Resident (someone who has a Green Card)
Employment

The public charge rule does not apply to everyone who is applying for a Green Card. If you have a U Visa or a T Visa, the public charge rule does not apply to you. It also doesn't apply if you are a refugee, are an asylee in the U.S. , a special immigrant juvenile, or if you are a victim of domestic violence (VAWA).

Does the public charge rule affect people applying for Citizenship?

The short answer is "maybe, but probably not." This is because most immigrants are not eligible to receive the public benefits that count until they become Citizens.

An immigrant with a Green Card can only be a public charge within the first five after they get their Green Card. If they received public benefits during that time for a reason that existed before they got their Green Card, the government will consider them a public charge. Here are two examples to help you understand this rule.

Example 1

John was unemployed when he received his Green Card
John's unemployment continued, and he started receiving SSI and TANF after he got his Green Card
The government could consider John a public charge because the reason he received public benefits existed when he got his Green Card.

Example 2

John was working full time when he received his Green Card
John lost his job after he received his Green Card. He then started receiving SSI and TANF.
The government could not consider John a public charge, because the reason he received public benefits did not exist when he got his Green Card.

Again, most immigrants are not eligible to receive the public benefits that count until they become U.S. Citizens. The public charge rule will apply to you if you are want to become a Citizen, but it is very unlikely that the rule will keep you from being able to do so.

Does the public charge rule affect people applying for visas?

The U.S. State Department uses a simplified public charge test for a temporary visa applicants. U.S. Citizenship and Immigration Services (USCIS) also uses a simplified public charge test for visa holders who apply to extend their visa or change to a new visa type from within the U.S. This includes the H-1B Visa and many other common nonimmigrant statuses. People who want to extend or change their visa while in the U.S. need to prove that they have not received public benefits for a total of 12 months within the last 3 years.

Most people who are in the U.S. on temporary visas are not eligible to receive public benefits. They should be able to extend or change their visa without any risk that the government will think they are a public charge.

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What benefits matter for the Public Charge Rule?

Until now, the government only made a public charge determination if you received public cash assistance or lived in a long-term care facility that they paid for. The benefits that mattered were:

Supplemental Security Income (SSI)

Temporary Assistance for Needy Families (TANF), also known as "welfare”
State and local cash assistance and cash benefits, sometimes called “General Assistance” used for income maintenance. (Note -
Medicaid or other programs that pay for long-term care at government expense

The new public charge rule added quite a few benefits to the list above:

Supplemental Nutrition Assistance Program (SNAP or WIC), also known as “Food Stamps” or "nutrition program." State and federal school lunch programs do not count for the public charge rule.
Section 8 housing assistance, rental assistance and other housing benefit programs like public housing
Non-emergency Medicaid benefits (except for children under 21, people with disabilities, pregnant women, and mothers within 60 days after giving birth)

Under the new rule, the government will consider you a public charge based on your receipt of public benefits for a total of 12 months within any 3 year period. If you received two benefits for one month, that counts as two months. That standard is a little complicated, so here is are two examples to help you understand it.

Example 1

You received SSI from 3/1/2020 - 9/1/2020 (6 months)
You received SSI from 2/1/2021 - 8/1/2021 (6 months)
The government would consider you a public charge because you received public benefits for a total of 12 months within a 3-year period.

Example 2

You received SSI and TANF from 3/1/2020 - 9/1/2020 (6 months of SSI, and 6 months of TANF)
The government would consider you a public charge because you received two public benefits for 6 months each, for a total of 12 months, within a 3-year period.

The good news is that most immigrants are not eligible for these benefits and will not be rejected for having received them. Many immigrants receive unemployment benefits, but the public charge rule doesn't apply to unemployment benefits.

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How does the government decide if you will become a public charge?

Many people use public benefits because they do not earn enough money to pay their bills. Because of this, the government prefers people they think will be able to earn a good living. The government believes that the following things say a lot about whether you will be able to support yourself.

Your age

The government prefers immigrants who are between 18 and 61 years old.

Your health

The government prefers immigrants who do not have health conditions that might make it hard for them to work.

Your skills

The government prefers immigrants who speak English well. They also prefer immigrants who have certified professional skills.

Your work and education

The government prefers immigrants who have worked, gone to school, or been the primary caregiver for a family member for the last five years.

Your income

The government prefers immigrants from households that earn 125-250% of the Federal Poverty Level. They strongly prefer immigrants from households that earn more than 250% of the Federal Poverty Level. To figure out how your income compares to this standard:

Count the number of people who are part of your tax household. This is your household size
Add the income or each member of your tax household. This is your household income
Find the Federal Poverty Level chart for your state (or the state of the U.S. Citizen or Green Card Holder who is petitioning for you)
Locate your household size in the left-hand column of the chart
The number to the right of your household size in this chart is the Federal Poverty Level (FPL) for your household
Many this number by 1.25 to find 125% FPL
Multiply this number by 2.5 to find 250% FPL
Compare your household income to 125% and 250% FPL. If you are between 125-250% FPL, your income will help your application. If you are above 250% FPL, your income will help your application a lot. If you are below 125% (or 100% if your are an active-duty service-member in the U.S. armed forces), your income will hurt your application.

Your sponsor's income

When you apply to live in the U.S., you need to have a financial sponsor. This sponsor must be a U.S. Citizen or Green Card-holder. Your sponsor signs Form I-864, Affidavit of Support, where they agree to use their own income to help keep you from becoming a public charge. Their household income must be at least 125% FPL. The higher your sponsor's household income is, the better.

Your insurance

The government prefers immigrants who have insurance now, or who will have it when they are in the United States. this is especially true for immigrants who have medical conditions. Private insurance helps your application the most, followed by public insurance (like Obamacare), followed by temporary insurance.

Your financial history

The government prefers people who have good credit and who don't have very much debt. You can get your FICO credit score for free here.

Not having a FICO score neither helps nor hurts your application
A FICO score of 670 or higher helps your application
A FICO score between 580-670 neither helps nor hurts your application
A FICO score below 580 hurts your application

The bottom line

Nothing from the list above will make you a public charge by itself. The government looks at all of these factors together to get an idea of your ability to support yourself. If your application has more negative factors than positive ones, the government will probably reject it on public charge grounds. If the positive factors outweigh the negative ones, they probably won't.

We've made it easy to get an idea of your public charge risk level with the free ImmigrationHelp.org Public Charge Risk Estimator Tool. You can get started by clicking the button below.

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How can you prove that you’re not a public charge?

If the public charge rule applies to you, you'll need to figure out how likely the government is to think you will become a public charge. If you submit an application and the government rejects it for public charge reasons, they will not refund your fees. You also may not be able to apply again. Don't worry, though — we have a free tool that will make it easy to estimate how risky your application is. Click the button below to get started.

Fill out the right forms

In order to show the USCIS or consular officer reviewing your application that you are not a public charge, you will need to file a new form when you apply for immigration benefits. This form collects information that the government uses to determine if you are a public charge. The form you will use depends on where you are applying from:

If you are applying for adjustment of status from inside the U.S., USCIS requires you to file Form I-944, Declaration of Self-Sufficiency with your application paperwork.
If you are applying for any immigration benefits from outside of the U.S., the U.S. State Department requires you to file Form DS-5540, Public Charge Questionnaire with your application paperwork.

ImmigrationHelp.org can help you prepare your immigration paperwork for free. If you use our tools, you will receive a completed I-944 or DS-5540 with your application forms. Click the button below this section to get started.

Our Public Charge Risk Estimator sorts your application into one of three risk levels:

Low Risk: The government probably's won't reject your application because of the public charge rule. It's a good idea to take some steps to reduce your risk level, but it is probably safe to apply
Medium Risk: There is a good chance that the government will reject your application because of the public charge rule. It would be risky to apply without taking some steps to reduce your risk level.
High Risk: The government will probably reject your application because of the public charge rule. It would be very risky to apply without taking some steps to reduce your risk level.

Even if your application is "low risk," you can take steps to reduce your risk level even further.

Get Insurance

Insurance like Medicaid hurts your application, but other types of insurance can help it. There are three types of insurance that help your application:

Unsubsidized (you and/or your employer pay the full price) private health insurance helps your application a lot. This is because it shows the government that you can afford medical treatment. Private health insurance is insurance that is not provided by the U.S. government. The most common place to get private health insurance is through an employer, but you can also buy it from a health insurance company.
Subsidized (the government pays all or part of the price) private health insurance like Obamacare helps your application less than unsubsidized insurance. Most people buy this type of insurance from healthcare.gov.
Short-term insurance helps your application about as much as subsidized insurance like Obamacare. This type of insurance covers you for a specific period of time. It is most useful for immigrants who are between jobs or who are visiting the U.S.

Show your skills

Skills that you can prove help show the government that you will be able to work in the U.S., which makes you less likely to become a public charge. There are two types of skills that will help your application:

English Skills. People who speak English have an easier time finding work in the U.S. You can lower your public charge risk by showing the government that you can speak English well. You can do this by providing any or all of the following:
Language certifications. (ESL, etc)
Transcripts that show that you completed English classes
Diplomas or certificates of completion from English courses
Proficiency test results (such as TOEFL or the Cambridge Assessment). This quick test is a great option for proving your English ability.
Professional Skills. Licenses or certifications that prove you are qualified to work in an industry will lower your public charge risk.

Get your finances in order

Your finances are one of the main things that the government looks at to decide if you are likely to become a public charge. You probably can’t quickly increase your income, but you can take a few steps to improve financial status in the government's eyes.

Submit documents that prove your financial status. The more proof you provide, the better. It's good to include as many of the following as you can with your application:
Proof that you own your home, and of how much it is worth
Proof that you own your car, and of how much it is worth
Proof and values of any bank, investment, retirement, or other accounts that you own
Proof and values of any other valuable things you own that you could convert to cash within 1 year.
Find a co-sponsor. When you apply to live in the US permanently, you need to have a financial sponsor. This sponsor must be a U.S. Citizen or Green Card-holder. Your sponsor signs Form I-864, Affidavit of Support, where they agree to use their own income to help keep you from becoming a public charge. The higher your sponsor's household income is, the better. In some cases, you can "combine" their household income with the household income of another sponsor by submitting a joint Affidavit of Support. Affidavits of support from immediate family members are best.
Improve your credit score. If your credit score is low, getting it above 580 will reduce your public charge risk. Getting your score over 670 will lower your public charge risk even more. These tips and tricks can help you improve your credit score before you submit your immigration application.
Pay off your debt. The more debt you have, the riskier your application will be. Paying off as much debt as you can before you apply will help your application.

Get help with your application

Under the public charge rule, the government pays closer attention to your immigration application. That means it is more important than ever to prepare your paperwork carefully. We can help you get your forms ready, for free, using our simple app. Click the button below to get started.

Most people can prepare their immigration paperwork by themselves. Working with an immigration attorney may help reduce the risk that the government will deny your application under the public charge rule, though. You can find local attorneys and legal aid agencies on USA.gov. Many of these lawyers and agencies can help you for free!

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How does COVID-19 affect the Public Charge Rule?

The global pandemic has had a big impact on people's health and finances. Because of this, many immigrants and immigrant families worry that they will not be able to pass the public charge test. The good news is that the government doesn't consider COVID-19 testing, treatment, or preventive care (like vaccines) for COVID-19 in their public charge test. Getting these services will have no negative impact on your application.

The public charge rule doesn't apply to unemployment benefits. If you cannot work or attend school because of COVID-19, you can submit a statement about your situation with your application. This should reduce the risk that the government will consider you a public charge for employment reasons.

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