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.

By , J.D.

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 for being "inadmissible." One of the most troublesome grounds of inadmissibility is called "public charge," which basically means that the immigrant 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 U.S. immigration officials predict someone's future financial situation?

Which Types of Immigrants Need 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).

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

Receiving certain types of public benefits can result in applicants being deemed a likely public charge, but it's not at all automatic. Such history can be taken into account in this prospective analysis; and can also be overcome by, for example, showing that the applicant has full-time, lawful employment. (However, if the applicant had used fraud to obtain public benefits, that could lead to inadmissibility on other grounds.)

No Public Charge Finding for Receiving Unemployment

The Department of Homeland Security (DHS) considers unemployment a benefit that its holders have earned, rather than a public or need-based "benefit." Therefore, applying for unemployment will not have any negative consequence in a public charge analysis.

Not all non-citizens who work and are laid off will be entitled to unemployment benefits. Only certain legal categories will qualify, including:

  • lawful permanent residents (green card holders)
  • DACA (deferred action for childhood arrivals) recipients with valid work permits
  • TPS (temporary protected status) recipients with work authorization
  • H-4 visa holders with work authorization
  • asylees and refugees with work authorization
  • U and T visa holders with work authorization
  • TN visa holders, and
  • other non-citizens with valid entry into the U.S., and work authorization, who are able and available to work.

Other categories, like H-1B visa holders, L-1 visa holders, undocumented immigrants, and people with expired USCIS work authorization (even if their work authorization renewal is pending) do not qualify for unemployment benefits at all.

What Factors Are Considered in the Public Charge Finding?

The main factors in the applicant's life that U.S. immigration officials can lawfully consider when making a public charge determination include, according to I.N.A. § 212(a)(4)(B)(i) or 8 U.S.C. § 1182(a)(4)(B)(i) and the government's 1999 Interim Field Guidance:

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

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.

Be prepared to show extensive financial documents, particularly from the U.S. sponsor. But the immigrant can help, by showing a positive work history and ownership of valuable assets.

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