What Is the Public Charge Rule?

If a person is unlikely to be financially self-reliant and would rely on government aid while living in the U.S., they will likely be classified as a "public charge," making them inadmissible.

Anyone who applies for a U.S. visa or green card must not only show that they meet basic eligibility requirements, but that they are not blocked from U.S. entry as "inadmissible." One of the most troublesome grounds of inadmissibility is called "public charge," basically meaning that the person is unlikely to be financially self-supporting, but instead to rely on government aid while living in the United States. The question is, how do immigration officials predict someone's future financial situation?

This has been an issue for decades, as public charge has been part of immigration law for all that time. Under the Trump Administration, however, the implementation rules were amended. (It's actually two sets of rules, one by the Department of State (DOS) and one by the Department of Homeland Security (DHS), but they mirror each other.) The new rules, which went into effect on February 24, 2020, made clearing the public charge hurdle even more difficult for visa and green card applicants.

One thing to bear in mind, however, is that lawsuits are underway challenging the regulations. It's possible they will be further changed or blocked by the courts.

Who Needs to Worry About Being a Public Charge

Although applicants for immigrant visas or green cards are usually given the greatest scrutiny, almost any applicant, whether for an immigrant visa (such as through family or an employer) or a nonimmigrant visa (such as a student, visitor, or temporary worker visa), can be found likely to become a public charge and therefore denied a visa.

There are exceptions, however. The most widely used ones are for refugees, asylees, special immigrant juveniles, VAWA self-petitioners, and certain T and U visa applicants. You'll find the full list in the Foreign Affairs Manual at 9 FAM 302.8-2(B)(6).

New Application Forms and Sections Added by Public Charge Amended Rules

To emphasize that this isn't just a theoretical change worried about by officials behind the scenes, you should realize that the new rule added long and detailed forms to the green-card application process.

Applicants for immigrant visas at an overseas U.S. consulate will be required to submit Form DS-5540, Public Charge Questionnaire.

Applicants for adjustment of status in the United States must submit USCIS Form I-944, the Declaration of Self-Sufficiency.

Both ask questions about the applicant and household members' assets, resources, financial status, health insurance coverage, past receipt of public benefits in the U.S., and more. Also, both require submission of various documents to back up one's statements.

In addition to these new forms, some existing forms have had public-charge related questions added to them. Most notably, nonimmigrants applying for a change of status on Form I-539 will need to answer questions about whether they've received public benefits while living in the United States.

Concerns for Applicants Who've Already Received Public Benefits in the U.S.

One of the most significant aspects of the new public charge rules was that it expanded the list of public benefit programs that can result in applicants being deemed a likely public charge. Problematic programs include:

  • Supplemental Security Income  
  • Temporary Assistance for Needy Families 
  • any federal, state, local, or tribal cash benefit programs for income maintenance (often called general assistance in your state’s context, but which might exist under other names)  
  • Supplemental Nutrition Assistance Program (formerly called food stamps) 
  • Section 8 Housing Assistance under the Housing Choice Voucher Program 
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) 
  • public housing, and 
  • federally funded Medicaid (with certain exclusions). 

Although it's a long list, it doesn't include every type of benefit. For instance, emergency medical assistance, disaster relief, national school lunch, Special Supplemental Nutrition Program for Women, Infants, and Children, Children’s Health Insurance, subsidies for foster care and adoption, subsidized student and mortgage loan, energy assistance, food pantries, homeless shelters, and Head Start programs are not on the list. Nor are some Medicaid benefits. Unemployment insurance is an earnings-based program, so doesn't count as a benefit.

Importantly, during the coronavirus (COVID-19) pandemic: USCIS states that people with symptoms (fever, cough, shortness of breath) should seek necessary treatment or preventive services, and that this "will not negatively affect any alien as part of a future Public Charge analysis." Nor will receipt of Coronavirus Pandemic EBT (P-EBT) payments, which cover meals for children.

Overall Public Charge Standard: Totality of Circumstances

One could get lost in the details of the new rules. However, one of their most important aspects is that the U.S. government must consider the totality of the circumstances in predicting whether applicants are likely to become a public charge "at any time" in the future.

That means balancing all the positive and negative factors in someone's case, including the applicant's:

  • age
  • health
  • family status
  • education and skills, and
  • assets, resources, and financial status.

The various factors are weighed, with a particularly heavy weight given to past receipt of U.S. public benefits. This can cut either way for an applicant. A positive factor such as ownership of high-value assets might outweigh a negative one such as lack of job skills, for instance. But the reverse is also true, where one factor could drag down the others.

Because these regulations are relatively new and reflect an apparent political emphasis on scrutiny of immigrants' finances, your best bet in dealing with them is to hire an attorney to help with your application.

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