According to the U.S. Citizenship and Immigrations Services (USCIS), a public charge is a person who is not a citizen who applies for a visa, admission, or a change of status.
However, the government believes the applicant is or is likely to become primarily dependent on government assistance for their income maintenance if they are admitted, given a visa, or awarded a change of status. The government aid that the person might access would usually be public cash income or institutionalization for long-term health care.
If a person is classified as a public charge, they may become ineligible for a visa, admission, or a change of status, particularly to citizenship or permanent residency status. At the current time, USCIS must make this public charge inadmissibility determination for most noncitizens applying for lawful permanent residence. This involves submission of Form I-485, Application to Register Permanent Residence or Adjust Status.
For either situation to be possible, a person would have used one of these public benefits as of the time of filing their application for a change of status:
- Medicaid or another public program that covers long-term healthcare;
- Temporary Assistance for Needy Families (TANF), known as “welfare”;
- Supplemental Security Income (SSI);
- State or local assistance (general assistance).
Since only permanent residents and U.S. citizens can even qualify for these programs, it has traditionally been unusual for the USCIS to deny applications for a visa, permanent residence, or a change of status because the applicant was not admissible on public charge grounds.
For many years, most applicants for green cards were not concerned about failing the public charge test because they had never used any of the federal benefit programs. If they proved that they had a financial sponsor whose financial status met the Federal Poverty Guidelines for their application by filing Form I-864, Affidavit of Support, their application would succeed.
From 2019 to February 2020, the criteria for determining that an applicant for permanent residence or citizenship was a public charge changed. The Department of Homeland Security (DHS) directed immigration officers to weigh additional factors before approving an application for admission, permanent residence, or a change of status.
Officers began taking into consideration such factors as age and medical condition and how these factors might affect an applicant’s ability to find and perform a job. Applicants also had to show that they had private health insurance coverage before they were allowed to come to the United States.
Immigration officers also took family size into consideration. Applicants from larger families were determined to be more likely to become public charges. An applicant’s ability to speak English, as well as their work history and education, were also relevant factors. For the first time, DHS officers checked the credit scores, credit history, and financial liability to determine applicants’ financial status.
Expansion of Public Benefit Criteria
In addition, if the applicant had received welfare for long-term subsidized healthcare, it could make them ineligible for entry into the U.S. In addition, using one or more of the following public benefits for a total of 12 months or longer would make an applicant ineligible for a permanent residence or citizenship on the grounds that they might become a public charge:
- Supplemental Nutrition Assistance Program (SNAP or food stamps);
- Section 8 housing assistance;
- Any type of federal public housing or rental assistance
- Medicaid for medical care that was not rendered on an emergency basis unless to a pregnant woman who saw a doctor within 60 days of birth, people with disabilities, and children under the age of 21.
Before the rule change, immigrants could legally take advantage of these benefits, and many did. The DHS did not penalize the children or spouses of green card applicants.
Personal Financial Resources Requirement
The new Public Charge Rule in effect between 2019 and 2020 also required all applicants for adjustment of status to complete Form I-944, the Declaration of Self-Sufficiency form. This latter form was required in addition to the Form I-864. In the past, applicants had needed to prove only that a family member or sponsor had financial resources. With the new rule, they had to prove their own ability to meet income requirement thresholds.
Applicant household income had to be at least 125 to 250% of the Federal Poverty Guidelines. Preference was given to those with incomes above 250%. If a person’s income was above 250%, they would be considered less likely to become a public charge. The new personal financial requirements were a real challenge for low-income immigrant families who had previously been able to use a sponsor to meet income requirements.
The State Department required people applying for a green card through a consulate to complete Form DS-5540, Public Charge Questionnaire. The form was reviewed to ensure that immigrant visa applicants had not used any public benefits in the past.
What Is the Traditional Test for Public Charge?
The Department of Homeland Security (DHS), or State Department now applies a test to determine whether or not the noncitizen is likely to become a public charge considering such factors as the following:
- Age;
- Health;
- Family status;
- Assets;
- Resources;
- Financial status;
- Education;
- Skills.
Who Can Be Inadmissible Because of the Public Charge Rule?
People immigrating on the basis of a family visa petition are subject to the rule. In addition, they must submit an Affidavit of Support Form I-864.
Under immigration laws, people who may not be denied entry or a change of status on the grounds of public charge are as follows:
- Asylees and refugees;
- Amerasian immigrants at admission;
- Interpreters of Afghan and Iraqi nationality;
- Afghan or Iraqi citizens employed by the government of the U.S.;
- Entrants from Cuba and Haiti at adjustment of status;
- Applicants seeking adjustment under the Cuban Adjustment Act;
- Citizens of Nicaragua and other Central American nations seeking legal permanent resident status;
- Haitians who want to change their status to legal permanent residents;
- Lautenberg parolees;
- Special immigrant juveniles;
- Applicants for registry;
- Applicants seeking Temporary Protected Status;
- Certain foreign government officials and their families;
- Human trafficking victims (T nonimmigrants);
- Victims of qualifying criminal activity (U nonimmigrants);
- Self-petitioners under the Violence Against Women Act;
- Certain noncitizens who are battered and “qualified aliens” under the Welfare Reform Act);
- Applicants seeking an adjustment of their status who qualify for a benefit because they are the surviving spouses, children, or parents of military members;
- Noncitizen American Indians native to Canada;
- Noncitizens who are members of the Texas Band of Kickapoo Indians of the Kickapoo Tribe of Oklahoma;
- Citizens of Cambodia, Laos, and Vietnam who apply under the Indochinese Act;
- Polish and Hungarian Parolees;
- Certain citizens of Syria;
- Applicants seeking adjustment of their status pursuant to the Liberian Refugee Immigration Fairness law;
- Others.
Which Benefits Are Subject to the Public Charge Classification?
As noted above, the change to the rule that went into effect in 2019 has been nullified to some extent. The rule that was in effect prior to 2019 has been restored mostly.
For all applicants for adjustment of status who are subject to assessment under the public charge rule, the USCIS must consider at least their age, health, family status, assets, resources, financial status, and education and skills.
The USCIS favorably considers a completed Affidavit of Support Under Section 213A of the INA (Form I-864 or Form I-864EZ) if it is required. The USCIS also considers any current and/or past receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.
The USCIS now considers an applicant’s current and/or past use of public cash assistance for income maintenance, including cash received, but only from the following programs:
- Supplemental Security Income (SSI);
- Cash paid pursuant to the Temporary Assistance for Needy Families (TANF) program;
- State and local cash paid as part of a ‘‘General Assistance’’ program.
The USCIS now also considers whether a person was a patient in a nursing home or mental health institution.
However, very few applicants would probably be inadmissible because of the public charge rule because they would not be eligible for these public benefits prior to any adjustment of status.
Benefits Not Subject to the Public Charge Classification
Generally, the USCIS does not consider non-cash benefits in making public charge determinations. The only non-cash benefit that is considered is long-term institutionalization at government expense. The agency also does not consider special-purpose cash assistance that is not intended for income maintenance.
For example, USCIS does not consider any of the following public benefits in assessing an applicant per the public charge rule:
- Nutrition programs;
- Health programs;
- Housing programs;
- Education and childcare programs;
- Disaster relief programs;
- Other.
Should I Consult an Attorney for My Public Charge Issues?
As can be seen from the above, immigration law can be complicated. If you are an immigrant who wants to change your status to that of a permanent resident or citizen or get a visa and you have made use of federal benefit programs, you want to consult an immigration lawyer.
LegalMatch.com can connect you to an immigration lawyer who knows what the current laws are regarding the public charge rule and other rules that may apply to your case. It pays to submit your best application the first time so you get the result you want from the USCIS.
