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What is the Public Charge Rule?

October 25, 2021
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Summary

The Public Charge Rule is not a new U.S. immigration concept. From as early as 1882, the U.S. Congress used the concept to deny visas to people who would become a “public charge” as immigrants. A public charge is anyone who would become dependent on the U.S. government after gaining immigrant status. In 2019 the Trump Administration proposed a new Public Charge Rule which began in 2020 and made it much tougher for immigrants to get permanent resident status. This article explains the history of the Public Charge Rule and what it means for you today.

Overview

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:

  1. received public cash assistance for income maintenance (cash benefits), or; 
  2. received long-term healthcare at the U.S. government’s expense.

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

  • Medicaid or another public program that covered your long-term health care
  • 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 are able to use these welfare services, it was 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 an Affidavit of Support (Form I-864). 

But In 2018, the Trump administration proposed changes to the existing Public Charge Rule. On September 28, 2018, the United States Department of Homeland Security (DHS) proposed a new Public Charge Rule, and on August 14, 2019, it published a final rule. The new Public Charge Rule went into effect on February 24, 2020.

What changed under the Trump Administration’s Public Charge Rule?

Things changed with the new Public Charge Rule. Under the new rule, the Trump Administration expanded the criteria for becoming a public charge. Instead of assessing whether an applicant had relied on U.S. government assistance in the past, the new rule went beyond to ask if a green card or visa applicant was “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. 

To assess the likelihood of future receipt of public benefits, the Department of Homeland Security (DHS) authorized immigration officers to consider a wider variety of factors before approving a visa. Immigration officers began considering things like your age and medical conditions and how that influenced your ability to work. Applicants needed to be able to show that they had secured private health insurance in advance of coming to the United States. Immigration officers also considered family size - applicants from larger households were deemed more likely to become a public charge. Your ability to speak English and your past work and education also became a factor in assessing whether you could get a job as an immigrant. For the first time, DHS was checking credit scores, credit history, and financial liability to determine applicants’ financial status.

As part of the rule changes, the scope of public benefits whose usage would result in a denial on public charge grounds 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 you 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 in a non-emergency, except for pregnant women and mothers who saw the doctor within 60 days of birth, people with disabilities, and children under age 21

These newly-added disqualifying benefits were ones that non-citizens could legally take advantage of before the new rule. Non-citizens who had used these benefits and were now applying for green card visa status were, in effect, now being punished for using them legally in the past. DHS did not penalize children or spouses of green card applicants though. However, if an applicant used two of these added public benefits in one month, DHS counted that as two months of public benefit use. 

The new Public Charge Rule also added a new requirement for personal financial resources. To meet this new requirement, all adjustment of status applicants had to complete the new U.S. Citizenship and Immigration Services (USCIS) Form I-944. Form I-944, was officially named “Declaration of Self-Sufficiency” and had to be filed in addition to the existing Form I-864, “Affidavit of Support.” This meant that beyond proving that their green card sponsors had enough financial resources, applicants now also had to prove that they could also personally meet the income thresholds. 

Applicant household income had to be at at least 125%-250% of the Federal Poverty Guidelines. The government strongly preferred those with income above 250% of the guidelines. 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 the 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 adjustment of status and consular processes, green card applicants had to jump through more 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 (lawful permanent residence). If you applied for a family-based green card, that is, through a relationship to a U.S. citizen or lawful permanent resident, or an employment-based green card, then you had to pass the public charge test. 

On the other hand, 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 after 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. 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 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 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.

Is the Trump Administration’s Public Charge Rule still active?

Good news — the new 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 new rule. This means green card applicants no longer have to file either Form I-944 or DS-5540 to the U.S. government. Beginning March 9, 2021, the Department of Homeland Security (DHS) has returned to its pre-Trump interpretation of the Public Charge Rule. It is back to being a guiding principle and not an expanded restrictive rule.

Conclusion

Applying for immigration benefits can be complicated, but working with a good immigration attorney can make it easier. If you can't afford the attorney fees and don't want to handle your immigration case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!

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