What Is the Public Charge Rule?

What Is the History of the Public Charge Rule?

Historically, the Public Charge Rule has been enacted more as a guiding principle than as a rule. Since 1999, the Department of Homeland Security (DHS) has made public charge determinations depending on whether a person:

• Received public cash assistance for income maintenance (cash benefits) 

• Received long-term healthcare at the U.S. government’s expense

For either situation to be possible, they must have used one of these public benefits at the time of filing their green card:

• Medicaid or another public program that covered long-term healthcare

• Temporary Assistance for Needy Families (TANF or welfare)

• Supplemental Security Income (SSI)

• State or local assistance (general assistance)

Since only permanent residents and U.S. citizens can use these welfare services, it was historically rare for the U.S. government to deny green card applications due to inadmissibility on public charge grounds. For two decades, many green card applicants did not have to worry about failing the public charge test since they had never used any of these U.S. benefit programs. All they had to prove was that they had a financial sponsor whose financial status met the required Federal Poverty Guidelines for their application by filing Form I-864, Affidavit of Support. 

What Changed Under the Trump Administration?

In 2019, the Trump administration expanded the criteria for becoming a public charge. Instead of just assessing whether an applicant has relied on U.S. government assistance, the new rule also asked if a green card or visa applicant is “likely” to rely on government benefits in the future. If they were found likely to receive benefits in the future, they could not get their visa or green card. 

The Department of Homeland Security (DHS) authorized immigration officers to consider a wider variety of factors before approving a visa. They began considering things like age and medical conditions and how that influenced an applicant’s ability to work. Applicants had to show that they had secured private health insurance before coming to the United States. 

Immigration officers also considered family size. Applicants from larger households were deemed more likely to become a public charge. Their ability to speak English and past work and education also became a factor. For the first time, DHS officers were checking credit scores, credit history, and financial liability to determine applicants’ financial status.

Expansion of Public Benefit Criteria

As part of the rule changes, the scope of public benefits criteria that would result in denial was also expanded. In addition to receiving welfare and long-term subsidized healthcare, using one or more of these public benefits for 12 months or more total would make an applicant ineligible for a green card on the public charge ground of inadmissibility:

• Supplemental Nutrition Assistance Program (SNAP or food stamps)

• Section 8 housing assistance 

• Any federal public housing subsidies or rental assistance

• Medicaid for nonemergencies, except for pregnant women and mothers who saw the doctor within 60 days of birth, people with disabilities, and children under age 21

Before the rule change, noncitizens could legally take advantage of these benefits, and many did. DHS did not penalize children or spouses of green card applicants. But if an applicant used two of the added public benefits in one month, DHS counted that as two months of public benefit use.

Personal Financial Resources Requirement

The new Public Charge Rule also added a requirement for personal financial resources. To meet this new requirement, all adjustment of status applicants had to complete Form I-944, Declaration of Self-Sufficiency, and file it in addition to the existing Form I-864. Instead of applicants only needing to prove a family member or sponsor had financial resources, they now had to prove their own ability to meet the income thresholds.

Applicant household income had to be at least 125 –250% of the Federal Poverty Guidelines. The government strongly preferred those with income above 250%. If your income was above 250%, you would be considered less likely to become a public charge. For applicants from low-income immigrant families who previously only had to rely on their sponsor to meet the income requirements for their application, meeting this new personal financial requirement became a challenge. 

For people who were applying for a green card through the consular process, the State Department required them to complete Form DS-5540, Public Charge Questionnaire. Consular officers reviewed the questionnaire to make sure immigrant visa applicants had not used any public benefits in the past. For both adjustments of status and consular processes, green card applicants had to jump through hoops that hadn’t existed previously. 

Who Did the Trump Administration’s Public Charge Rule Affect?

The Trump Administration’s new Public Charge Rule only applied to people trying to get new immigration status. It did not apply to green card holders who were not trying to become citizens, and it did not apply to U.S. citizens. Still, the rule was stricter for immigrants than it was for nonimmigrants.

Green Card Applicants

The new Public Charge Rule applied to almost all people who were applying for green cards, or lawful permanent residence. If you applied for a family-based green card (related to a U.S. citizen or lawful permanent resident) or an employment-based green card, then you had to pass the public charge test. 

If you had a U visa or a T visa, the new Public Charge Rule did not apply to you. It also didn't affect refugees, asylees, special immigrant juveniles, or victims of domestic violence (VAWA petitioners).

Citizenship Applicants

The new Public Charge Rule did not affect many citizenship applicants because they were not eligible for the public benefits that counted in the new public charge determinations. An immigrant with a green card could only become a public charge within the first five years of getting their green card. If they received public benefits during that time for a reason that existed before they got their green card, the government could consider them a public charge. Two examples can 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 at the time of getting his green card.

Example 2

John was working full time when he received his green card. John lost his job when the COVID-19 pandemic hit, after receiving 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.

Is the Trump Administration’s Public Charge Rule Still Active?

No, the Public Charge Rule that the Trump Administration implemented is no longer active. On November 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the rule. This means green card applicants no longer have to file either Form I-944 or DS-5540. Beginning March 9, 2021, DHS has returned to its pre-Trump interpretation of the Public Charge Rule as a guiding principle and not an expanded restrictive rule.

Conclusion

Applying for immigration benefits can be complicated, but help is available. If you are eligible, our free web app will walk you through the application process and help you prepare and file your application with the U.S. government. If our app isn’t a good fit, we may be able to refer you to an experienced immigration attorney to help. Click "Get Started" to see how we can help make your American dream come true!