The following discusses general issues relating to the evaluation of public charge and how it may change in the future. This information does not constitute legal advice. Each situation is different and requires specific analysis. Contact CLA for assistance.
Last updated: June 2019 | Leer en español
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. In short: if the proposed rule is implemented, there will be more ways to label an immigrant as a “public charge” than there were before. This will likely result in fewer immigrants being granted visas and green cards. More immediately, this proposed change could (and has) lead to disenrollment from public benefits programs by immigrants and their families, which can (and has!) have devastating impacts on their financial security and health.
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 right now? How could that change?
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. As of now, NO CHANGES HAVE BEEN MADE regarding public charge evaluation and inadmissibility.
Programs currently evaluated in the public charge test:
Cash assistance (TANF, SSI)
Institutionalized care (e.g., nursing home) through Medicaid
Programs that could be added to evaluation in the public charge test, if the policy proposal goes into effect:
SNAP (Supplemental Nutrition Assistance Program—food stamps)
Medicaid (NOT emergency Medicaid)
Medicare part D (prescription benefits)
Section 8 Housing Benefits
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
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?
There is likely no benefit to disenrolling from any programs right now, since the rule has not been finalized. It is more important to keep yourself and your family healthy. You should speak with an attorney regarding your situation.
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 is not retroactive. If you were previously enrolled in public benefits, but aren't now, your status likely will not be impacted. 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.