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.
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:
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.
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:
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.
The public charge rule applies to all noncitizens. It affects immigrants and nonimmigrants in different ways.
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.
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:
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).
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.
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.
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.
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)
The new public charge rule added quite a few benefits to the list above:
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.
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.
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.
The government prefers immigrants who are between 18 and 61 years old.
The government prefers immigrants who do not have health conditions that might make it hard for them to work.
The government prefers immigrants who speak English well. They also prefer immigrants who have certified professional skills.
The government prefers immigrants who have worked, gone to school, or been the primary caregiver for a family member for the last five years.
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:
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.
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.
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.
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.
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.
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:
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.
Our Public Charge Risk Estimator sorts your application into one of three risk levels:
Even if your application is "low risk," you can take steps to reduce your risk level even further.
Insurance like Medicaid hurts your application, but other types of insurance can help it. There are three types of insurance that help your application:
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:
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.
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.
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!
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.