The New Public Charge Rule Explained

The New Public Charge Rule Explained

The rollout of the Trump administration’s new public charge rule has generated a lot of uncertainty about how and when it will affect immigrants seeking certain types of public benefits. The amount of misinformation and unanswered questions surrounding what is the public charge only complicates things further.

In this post, we will summarize what public charge is, who it is likely to affect, and what to consider if you are affected by the new policy. We strongly encourage you to reach out to an immigration attorney if you have questions about your case and how changes to the public charge rule might affect you.

Who does the Public Charge Rule Affect?

The new public charge rule only affects non-US citizens applying for some kind of new status. This includes:

  • visa applications 
  • your first application for a green card, or lawful permanent resident (LPR) status 
  • an extension or change from your current status 

You are NOT affected by the public charge rule if you do not fall into these categories.

For example, if you are applying for citizenship you are NOT affected by the public charge rule.

Likewise, if you are renewing your green card you are NOT affected by the public charge rule. 

However, unless you are a United States citizen, if you leave for more than 180 days and return to the United States, you will be affected by the public charge rule.

Public Charge Rule Exemption

Even if you are applying for your green card for the first time, you may be exempt from the rule if you are adjusting from certain statuses. You are not subject to the new public charge rule if you have any of the following statuses or protections:

  • refugee 
  • asylee
  • U nonimmigrant status 
  • T-visa 
  • VAWA
  • TPS 
  • SIJS
  • DACA 

The rule has specifically exempted holders of these kinds of status, and more, from the public charge rule.

If you currently have status not listed above and want to know whether you may be exempt, contact an immigration attorney.

What is the Public Charge Rule?

The “public charge rule” refers to a legal term in the Immigration and Nationality Act (INA), the governing law for all immigration into the United States. The relevant part of the INA says that anyone who “is likely at any time to become a public charge,” is inadmissible. In other words, if you are ruled as a public charge, you will most likely be denied a visa or application for other types of lawful status on that ground alone. 

For a complete list of the factors that Immigration will consider when ruling on public charge, please view the Federal Register, page 41293.

What is a Public Charge?

A “public charge” is anyone who was deemed unable to support themselves financially in the United States.

Previously, people trying to immigrate only had to submit an affidavit of support indicating their income and how they planned to support themselves or be supported in the United States.

What is the New Public Charge Rule?

The new rule means that applicants for immigrant visas and green cards will be evaluated beyond their expected income and plan for supporting themselves in the United States.

Now, immigration officials will apply a “totality of the circumstances” test. This allows the individual official to weigh many more factors in addition to an immigrant’s finances. It is not clear exactly how the test will be applied, but the rule permits officials to consider factors like the immigrant’s education, skills, English proficiency, age, income, medical history, and more.

Officials will also look at whether applicants have ever received public benefits, including; cash assistance, like TANF or SSI, long term medical care under Medicaid; any state cash assistance; or other forms of assistance, like food stamps, Section 8 housing assistance, and Medicaid. These programs will be considered under the new public charge rule.

However, things like CHIP, EITC, free/reduced lunch, and busing assistance will not be considered public charges.

New Public Charge Rule Summary

In general, if you are applying for LPR status, a visa, or changing status for the first time, and you are NOT an asylee, refugee, DACA recipient, or on certain types of protective visas, you may be subject to the public charge rule. 

All of this is just an overview of what the public charge rule will and will not do. It is not clear right now how exactly it will be applied by immigration officials, since the new rule gives officers discretion in how they weigh the many factors they are allowed to consider.

Please hire an immigration attorney if you are thinking of applying for LPR status or for a visa, because they will be able to address questions specific to your case.

New Public Charge Rule FAQ

Status

Officials will only look at whether the immigrants themselves—not their children, parents, siblings, or anyone else—have received any assistance from the programs listed above in the last 36 months prior to their application for new status.

If you have received public benefits from one of those programs for more than 12 months total within the last 36 months, you will be found inadmissible. If you have received benefits from one of those programs for less than 12 months out of the last 36, receipt of those benefits will still be a negative factor in the assessment that immigration officials make of your application.

If an LPR leaves the United States for more than 180 days, the new public charge rule may affect their status when they return.

The new public charge rule only affects green card renewals if the applicant leaves the United States for more than 180 days. The new rule may affect these LPRs upon their return.

The public charge rule already applies to those who are consular processing. We are still waiting, however, for the final forms to be published.

No, the new public charge rule does not affect people applying for citizenship.

Rulings Under New Public Charge

Your family’s receipt of Supplemental Nutrition Assistance Program (SNAP) benefits, commonly called Food Stamps, should not affect your ability to immigrate.

However, if your family is sufficiently low income that they qualify for SNAP, you may have problems completing the affidavit of support.

Yes, under the new rule, Medicaid is considered a public charge.

The public charge could affect those who are disabled. Based on the new public charge rule, someone’s inability to work could negatively impact their application to immigrate to the United States.

Sources: 74 FR 56547 (Nov. 2, 2009), 83 FR 51114, 51183 and 84 FR 41411 (Federal Register, page 41411).

Being HIV positive is not, in itself, a reason that the United States will not give you lawful permanent residency. Furthermore, the new public charge rule states that participation in the AIDS Drug Assistance Program (ADAP) is not the receipt of a public benefit.

However, according to the new public charge rule, Immigration can consider if someone has a medical condition that is likely to prevent the immigrant from providing or caring for themselves. You may be considered a public charge if you have medical conditions that require extensive medical treatment or institutionalization, or that prevent you from working or attending school. 

Immigration’s inquiry as to your health is determined by the United States Centers for Disease Control (CDC). Read more about their policy about asking and reporting on an immigrant’s HIV status on their website.

Sources: 74 FR 56547 (Nov. 2, 2009), 83 FR 51114, 51183 and 84 FR 41411 (Federal Register, page 41411). 

Other New Public Charge Rule Questions

There are no specific income requirements for the new public charge rule. However, there are still income requirements for completing the affidavit of support. Read those requirements here at USCIS.gov.

No, the new public charge rule is not retroactive.

The new rule will go into effect on February 24, 2020.

Last updated: 2-6-2020

Immigration law is always changing. We will do our best to keep our website as up-to-date as possible, but the latest information might be more readily available at USCIS.gov. These pages were written to help you better understand your legal options, however, none of the information published by Catholic Charities Milwaukee should be considered legal advice. If you plan to open your own immigration case, hire an immigration attorney to consult you personally.