FAQ: New Public Charge Rule

Tanishka CruzEnglish

  1. What does being a “public charge” mean?

In immigration law, a “public charge” refers to a person who is primarily dependent on the government for subsistence. On August 14, 2019, the Trump administration rolled out a new regulation that broadens the definition of a public charge making it easier for government officials to deny green cards and visas for some immigrants who use certain pubic benefits.

The new definition of a public charge now includes immigrants who use or receive, or are likely to use or receive, one or more public benefits, including non-cash benefits.

  • What is a “public benefit”?

A “public benefit” is defined as the use of any cash benefits from the government for income maintenance, or the use of any benefits from qualifying programs (see question 6). Only public benefits received by the intending immigrant for their own benefit, or where the intending immigrant is listed as a beneficiary of the benefit, are considered towards making the public charge determination.

**For example, taking out Medicaid for a U.S. Citizen child as a non-citizen parent does not count as receiving public benefits.

  • What happens if you are found to be a “public charge”?

Applicants for “adjustment of status” (or a “green card”) who are not exempt from the new rule will now have to file Form I-944, Declaration of Self-Sufficiency, with their initial application. If they are found likely to be a public charge after submitting Form I-944, Declaration of Self-Sufficiency, they have the opportunity to submit additional evidence before being found ineligible.

Applicants applying for admission will face tougher consequences should they be found to be inadmissible on public charge grounds. This determination is made after the consular interview abroad in the applicant’s home country, so the applicant cannot enter or return to the United States until the public charge determination is overcome.

  • For applicants who were not required to obtain a provisional waiver for unlawful presence before the consular interview, the applicant can submit a new Affidavit of Support with new co-sponsors, and/or joint sponsors, as well as additional documentation evidencing the sponsor’s income, prior tax payments, and the applicant’s own self-sufficiency.
  • For applicants who were required to obtain a provisional waiver for unlawful presence before the consular interview, the provisional waiver will be revoked if they are found inadmissible on public charge grounds. They would need to start over and file the unlawful presence provisional waiver from abroad and wait for it to be granted. Only then could they submit new financial evidence and overcome the public charge finding.

Applicants who are initially determined likely to become a public charge by immigration officials also may be offered the opportunity to post a public charge bond of at least $8,100. The bond may be cancelled only upon the immigrant’s death, permanent departure, five years as a Lawful Permanent Resident, or naturalization. The bond will be considered breached if the immigrant receives public benefits from qualifying programs (see question 6) for more than 12 months in the aggregate within any 36-month period.

  • Who is exempt from the new rule?

Those who already have a pending application with immigration are not subject to the new rule. Your application must have been postmarked before October 15, 2019.

Those applying for green cards through humanitarian-based programs are not subject to the new rule. Those exempt include: refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T-Visa holders), victims of qualifying criminal activity (U-Visa holders), or victims of domestic violence (VAWA self-petitioners).

  • Which public benefits are okay to use?
  • Public benefits received by individuals serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children
  • Public benefits received by children who will acquire U.S. citizenship directly upon admission to the United States per the Child Citizenship Act of 2000
  • Medicaid received by immigrants under 21-years-old and pregnant women
  • Medicaid for school-based services (including services under the Individuals with Disabilities Education Act)
  • Medicaid benefits for emergency medical services
  • Health insurance through the Affordable Care Act (Obamacare)
  • Subsidies received through the Affordable Care Act (Obamacare)
  • Medicare Parts A, B, C, and D
  • Low-Income Housing Tax Credit (LIHTC) programs
  • Section 515 Rural Housing
  • Section 514/516 Farm Labor Housing
  • Homeownership programs, such as the Housing Choice Voucher Homeownership program
  • Medical insurance programs that are funded exclusively by the state
  • Vaccinations obtained through public benefits programs, so long as you are not enrolled in Medicaid
  • All state, local, and tribal non-cash benefits
  • Social Security retirement benefits
  • Social Security Disability, postsecondary education, or unemployment benefits
  • Pell grants and student aid programs
  • Children’s Health Insurance Program (CHIP)
  • Private or employer health insurance
  • Special Supplemental Nutrition Program for Women, Infants and Children program (WIC)
  • Head Start programs for elementary, secondary, or higher education
  • Job training programs
  • Community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
  • Non-cash benefits under Temporary Assistance to Needy Families (TANF) (such as subsidized child care or transit subsidies)
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Use of health clinics
  • Health insurance through VA or TRICARE
  • Short-term rehabilitation services
  • Which public benefits are NOT okay to use?
  • Cash benefits for income maintenance
  • Supplemental Security Income (SSI)
  • Temporary Assistance to Needy Families (generally)
  • Section 8 Housing Assistance under the HCV Program, Section 8 Project-Based Rental Assistance, and certain forms of subsidized housing
  • Medicaid outside of the exceptions listed above
  • Housing assistance and food assistance under the Supplemental Nutrition Assistance Program (SNAP)
  • How does immigration decide when you are a “public charge”?

The new rule requires that immigration officials use a “totality of circumstances” approach to making decisions about public charge findings. Immigration officials will be looking at whether the applicant 1) has the ability to make a living; 2) is meeting basic needs by the sufficiency of the household’s income, assets, and resources; 3) has a legally-sufficient Affidavit of Support and has a sponsor actually willing to support them; and 4) has the ability to overcome receipt of public benefits above the designated threshold. Traditionally, the Affidavit of Support (Form I-864), your sponsor’s most recent tax return, and their paystubs were the main method by which immigration officials decided whether or not you were a public charge.

Now, immigration officials can look at the entirety of your financial circumstances, such as your age, English language proficiency, education level, health, employment history, and your credit history. In applying the new “totality of circumstances” approach, certain characteristics of the applicant’s background have been classified as positive factors, negative factors, heavily weighed positive factors, and heavily weighed negative factors. The more positive and heavily weighed positive factors an applicant has, the more likely that they will not be found a public charge. The more negative and heavily weighed negative factors an applicant has, the more likely that they will be found a public charge. However, having a heavily weighed negative factor does not mean you will be found a public charge – a combination of positive and heavily weighed positive factors can make up for this situation.

  • What are the positive factors? What are the heavily weighed positive factors?

Positive Factors

  • Your age is between 18 and 61
  • Any medical conditions that you have do not affect your ability to work or to care for yourself
  • You have a smaller family size
  • You are supporting your family as the primary caregiver
  • You have completed education at a high school level or above
  • You have completed specialized training or courses for your job
  • You have a high credit score
  • You have high English language proficiency
  • You have a history of stable employment
  • You have developed occupational skills (such as through specialized training or courses taken for your job)
  • You have disenrolled or have requested to be disenrolled from public benefit programs

Heavily Weighed Positive Factors

  • Your household income is greater than 250% of the Federal Poverty Guidelines for your household size (See, https://www.uscis.gov/i-864p)
  • You have private health insurance, or insurance under the Affordable Care Act (Obamacare) that is not subsidized via premium tax credits
  • What are the negative factors? What are the heavily weighed negative factors?

Negative Factors

  • Your age is lower than 18 or greater than 61
  • Any medical conditions that you have that affect your ability to work or to care for yourself
  • You have a larger family size
  • You depend on support from another household
  • You have received public benefits for any amount of time
  • You have used a fee waiver for immigration benefits/application forms
  • You have not completed education at a high school level or above
  • You have a low credit score
  • You do not have high English language proficiency
  • Your household income is below 125% of the Federal Poverty Guidelines for your household size

Heavily Weighed Negative Factors

  • You have received or you have been approved to receive public benefits for more than 12 months in the aggregate within the 36-month period prior to applying for admission or to adjust status
  • You have medical conditions that require extensive treatment or institutionalization, and you are uninsured or lack the means to pay for the associated medical costs
  • You are not employed nor a full-time student
  • You previously have been found to be a public charge
  1. How are Lawful Permanent Residents and Naturalized U.S. Citizens affected?

Current Lawful Permanent Residents generally are not affected by the new rule. Should a Lawful Permanent Resident apply for citizenship, their application cannot be denied based on the public charge inadmissibility ground. However, Lawful Permanent Residents will be subject to the new rule in circumstances where they are considered applicants for admission, such as if they are returning to the United States from a trip abroad in excess of 180 days. Current Lawful Permanent Residents should still be careful to only use public benefits for which they are eligible; Lawful Permanent Residents should not use public benefits exclusive to U.S. Citizens.

Citizenship cannot be revoked from naturalized U.S. Citizens based on the public charge inadmissibility ground. U.S. Citizens are free to use public benefits if they are eligible to do so.

  1. What documents are helpful to collect in order to avoid a “public charge” determination?

Copies of your last 3 federal tax transcripts are now required to be submitted when you apply to adjust status or apply for admission, but additional documents should be submitted, as well. Because immigration officials are evaluating a “totality of circumstances” when making public charge findings, it is important to provide as much evidence as possible that you and/or your household are self-sufficient, and that you contribute to your household.

The following documents can demonstrate your self-sufficiency and household contributions:

  • Your last 2 paystubs (if working)
  • A letter from your employer, confirming your hours, rate of pay, and work ethic
  • Evidence of any assets you may have (ex. mortgage statements, car statements, bank account statements, record of stocks and bonds)
  • Evidence of any financial planning (ex. retirement account, college savings account, life insurance account)
  • Evidence of educational level (ex. high school diploma, college diploma, occupational training diplomas, transcripts)
  • Evidence of good health (ex. medical records)
  • Evidence of English proficiency (ex. English-language course diploma/transcript, letter in support of your case written in English)
  • Evidence of health insurance from a private provider, your employer, or the Affordable Care Act (Obamacare)
  • Your credit score report
  • Evidence that you do not qualify for one or more public benefits from a Federal, State, local, or tribal agency (ex. letter from public benefit agency, Webpage from a public benefit agency showing that you are not eligible based on income)
  • Letters from members of your household, describing how you contribute to the household

This FAQ was authored by Jordan Woodlief, Paralegal and Tanishka Cruz, Managing Attorney and is based on legal research and contains the opinions of the authors and should not replace independent legal advice provided by an attorney or representative familiar with an individual’s case.

Call Cruz Law, PLLC at (434) 260-0665 for a free consultation.