Immigration Public Charge

Immigration Public Charge Rules under the Trump Administration

Updated to Reflect new 2020 Trump Rules

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What is a Public Charge, and why does it matter?

For purposes of determining inadmissibility, “public charge” means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.

A number of factors must be considered when making a determination that a person is likely to become a public charge. Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (Green Card) is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge."

However it is very important to note that DHS should not attribute receipt of a public benefit for the foreign national aline themselves; USCIS is not allowed to use benefits received only by others in the household to determine a public charge.

DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit.

DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person. DHS will also not attribute receipt of a public benefit by one or more members of the applicant’s household to the applicant unless the applicant is also a listed beneficiary of the public benefit.

Your attorney will work with you to avoid and fight back against any Public Charge allegation issues. Click here for a free consultation today with one of our immigration lawyers.

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How does immigration determines whether a foreign national (alien) may become a Public Charge?

Inadmissibility based on the public charge ground is determined by the totality of the circumstances. This means that the adjudicating officer must weigh both the positive and negative factors when determining the likelihood that someone might become a public charge. At a minimum, a U.S. Citizenship and Immigration Services (USCIS) officer must consider the following factors when making a public charge determination:

Age
Health
Family status
Assets
Resources
Financial status
Education and skills

The officer may also consider any affidavit of support filed on behalf of the individual under Section 213A of the INA. Presence or absence of a single factor cannot be the sole criteria for determining inadmissibility as a public charge, (unless that factor is the absence or insufficiency of an affidavit of support when required by the laws and regulations governing a specific immigration benefit, such as certain family-based adjustment of status applications).

In assessing the totality of the circumstances, including the statutory factors above, an officer may consider the foreign national alien's receipt of certain publicly funded benefits. Not all publicly funded benefits are relevant to deciding whether someone is likely to become a public charge. When determining whether someone is likely to become a public charge, USCIS will consider whether the individual is likely to become primarily dependent on the government for subsistence as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense. Short-term institutionalization for rehabilitation is not subject to public charge consideration under existing field guidance.

The following factors will generally weigh heavily in favor of a finding that an alien is likely at any time to become a public charge:

The alien is not a full-time student and is authorized to work but cannot show current employment, recent employment history, or a reasonable prospect of future employment.
The alien has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Oct. 15, 2019.
The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition.
The alien has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.

The following factors would weigh heavily against a finding that an alien is likely to become a public charge:

The alien has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for his or her household size.
The alien is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of his or her household size.
The alien has private health insurance appropriate for the expected period of admission, so long as the alien does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.

Specific Public Charge factors now taken into consideration under the Trump 2020 Public Charge Rules:

Any federal, state, local, or tribal cash assistance for income maintenance
Supplemental Security Income (SSI)

Temporary Assistance for Needy Families (TANF)
Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)
Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
Section 8 Housing Assistance under the Housing Choice Voucher Program
Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.
Federally funded Medicaid (with certain exclusions)

Non-cash benefits that USCIS does not consider are discussed in greater detail below.

DHS will not consider the receipt of designated public benefits received by an alien who, at the time of receipt, or at the time of filing the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces, and will not consider the receipt of public benefits by the spouse and children of such service members. The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under INA 320, 8 U.S.C. 1431 or INA 322, 8 U.S.C. 1433.

DHS also will not consider:

The receipt of Medicaid for the treatment of an emergency medical condition;
Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;
School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law;
Medicaid benefits received by an alien under 21 years of age; or
Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.

The final rule also clarifies that DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit.

DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person.

DHS will also not attribute receipt of a public benefit by one or more members of the applicant’s household to the applicant, unless the applicant is also a listed beneficiary of the public benefit.

Your attorney will work with you to avoid and fight back against any Public Charge allegation issues. Click here for a free consultation today with one of our immigration lawyers.