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Inadmissibility on the Grounds of Public Charge

Inadmissibility on the Grounds of Public Charge

The following discusses general issues relating to the evaluation of public charge. This information does not constitute legal advice. Each situation is different and requires specific analysis. Contact CLA for assistance.

Last updated: August 2019 | Leer en español

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Inadmissibility on the Grounds of Public Charge

In October of 2018, a proposed rule from the Department of Homeland Security was released, indicating plans to change public charge inadmissibility rules by widening the scope of evaluated benefits that could contribute to determining whether someone is liable to become a public charge. Due to this new rule, there are more ways to label an immigrant as a “public charge” than there were before. The implementation of the changed rule will likely result in fewer immigrants being granted visas and green cards.

What is public charge?

Public charge is a test used to determine if someone is likely to become reliant on certain government programs. The public charge test looks at income, employment, health and other factors in determining if someone may become dependent on the government in the future. The public charge doctrine is not new to the U.S.; it was conceptualized in immigration law in the 1880s and it’s written into the Immigration and Nationality Act, as follows: "'Any alien likely at any time to become a public charge' is not to be admitted into the country. Immigrants who become public charges within five years of entry are subject to being deported, unless they prove the causes of their reliance on public assistance developed after they entered the United States" (Center For Immigration Studies). Enforcement of inadmissibility based on public charge has historically been inconsistent.

How is public charge evaluated? What is the new public charge rule?

At a minimum, adjudicators are required to assess age, health, family status, assets, resources, financial status, education, skills and an affidavit of support, if applicable, when determining someone’s likelihood of becoming a public charge. This holistic evaluation is known as the “totality of the circumstances.” The presence or absence of one of the above factors should not be the sole determinant in assessing public charge status. It's required that the adjudicator consider and balance ALL factors before reaching a conclusion. The bulleted list below is updated to reflect the programs that will now be considered in the evaluation of public charge.

Programs evaluated in the public charge test:

  • SNAP (Supplemental Nutrition Assistance Program—food stamps); added August 14, 2019

  • Medicaid (NOT emergency Medicaid); added August 14, 2019

  • Section 8 Housing Benefits; added August 14, 2019

  • Cash assistance (TANF, SSI)

  • Institutionalized care (e.g., nursing home) through Medicaid

Programs that ARE NOT, and WILL NOT be, considered in public charge evaluation:

  • WIC (Women, Infants, and Children) benefits

  • CHIP (Children’s Health Insurance Program)

  • EITC (Earned Income Tax Credit)

  • Benefits used by eligible children in your family

  • Seeing a doctor at the hospital or clinic

  • Medicare Part D (prescription benefits)

Who is impacted by public charge evaluation?

Public charge applies to people who are applying for certain U.S. visas or lawful permanent residency (green cards). Public charge DOES NOT apply to lawful permanent residents who are applying for citizenship through naturalization.

Certain visas and statuses are exempt from public charge evaluation: refugees and asylees; victims of domestic violence or other serious crimes; people with u-visas (visas granted to immigrants in order to protect them from violence perpetrated against them); immigrants protected under VAWA (Violence Against Women Act); special Immigrant Juveniles (SIJs); and other immigrants.

People who are applying for a green card or certain visas from within the United States are seeking to undergo an “adjustment of status.” People who are applying from outside of the United States go through a different process known as “consular processing.” Applicants filing abroad through consular processing may be subject to different rules and regulations than those filing through adjustment of status. If you have questions about your specific case, you should contact CLA for legal help.

Frequently Asked Questions

  • Should I disenroll from the programs whose benefits I currently receive?

    • Contact an attorney as soon as possible to discuss your specific situation. The public charge rule will go into effect on October 15, 2019. After this point, the use of certain benefits as listed above may work against you if you are trying to become a permanent resident of the United States.

  • If I was enrolled in public benefits programs in the past, but I'm not now, will that negatively impact me?

    • The public charge evaluation, to be implemented on October 15, 2019, will NOT retroactively consider your participation in SNAP, Medicaid or Section 8 Housing. If you were participating in a benefits program previously included in the public charge evaluation, such as TANF, this WILL be retroactively considered. You should speak with an attorney regarding your situation.

  • Will my participation in public benefits programs immediately determine that I'm a public charge?

    • Remember: evaluating public charge requires a consideration of the “totality of the circumstances.” Other factors must be considered in addition to participation in public benefits programs. You should speak with an attorney regarding your situation.

It is strongly recommended that case-specific questions surrounding enrollment or disenrollment and use of public benefits be directed to an immigration attorney. Contact CLA for assistance regarding your specific situation.