What Is the Public Charge Rule?

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 Considered a Likely 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 will find the full list in the United States' Foreign Affairs Manual at 9 FAM 302.8-2(B)(6).

Concerns for Applicants Who Have Received Public Benefits in the United States

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 and visa denial 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, if you lose your job, 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 at all, including:

• lawful permanent residents (green card holders)
• DACA (deferred action for childhood arrivals) recipients with valid work permits (more technically called an Employment Authorization Document or EAD)
• TPS (temporary protected status) recipients with work permits
• H-4 visa holders with work permits
• asylees and refugees with work permits
• U and T visa holders with work permits
• TN visa holders, and
• other non-citizens with valid entry into the United States, and with work authorization or a permit, 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.

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

When to Seek Help From an Immigration Attorney

The above information is just a brief overview of who might be ineligible for a U.S. green card because of a "likely public charge" finding. If you believe this could be an issue in your case, you'd do best to consult with an experienced immigration lawyer for a full personal analysis and help with the visa or green card application process (which can be lengthy, complicated, and easy to do wrong).