What is the Public Charge Rule?

Public Charge Rule is among the many new ordinances pushed out by the Trump administration. But as always, many people, both citizens, and non-citizens are confused as to what it means and to whom it is applicable.

In this article, we’ll explain in-depth about the New Public Charge Rule and who should be concerned regarding its implementation.

What is the Public Charge Rule?

Public Charge is an inadmissibility rule that applies to a certain group of immigrants coming into the United States. On the ground of inadmissibility, someone could be denied a green card, American visa, or admission into the United States for a certain period. It is not a test, but more of an evaluation process carried out by an immigration officer.

He/she is put in charge to decide whether an applicant is likely to become a financial burden on the federal government and should he/she be allowed into the United States, which would then make them “Public Charge”. The steps undertaken by the officials are called “Rules”.

One of the basic long-standing principles of American immigration has been self-sufficiency. Since the 1800s, Congress has made it clear that if aliens are unable to take care of themselves and fail to prove their self-sufficiency, then they will be inadmissible until they become self-sufficient. Federal laws also followed similar guidelines.

On the 14^th of August 2019, DHS or the Department of Homeland Security came out with a final regulation regarding how it evaluates people for inadmissibility on the ground of self-sufficiency. This would apply to cases decided by the United States Citizenship and Immigration Services.

Formerly, the rules were all set to be taken into effect on October 15, 2019, but it was temporarily halted because of injunction from multiple federal courts. But the last nation-wide injunction was lifted on January 27, 2020, by the US Supreme Court. This enabled DHS to implement its Public Charge clause when evaluating the application for immigration.

Who Does the Public Charge Rule Affect?

The new Public Charge Rule does not apply to all immigrants. The rule primarily affects the green card applicants and visa status change applicants. The applicants from within the United States are called Adjustment of Status applicants, while those from outside are called Consular Processing applicants. Both of these categories of immigrants will be affected by the new Public Charge rules.

These changes went into effect from February 24, 2020. But the final rule will only apply to applications postmarked on or after 24 February 2020. If you’ve sent it by courier, then the postmarked date is the date mentioned on the courier receipt. Applications received February 24, 2020, will not be considered by DHS, even for the newly-added non-cash federal benefits.

The immigrant categories that are exempt from this rule as Naturalization applicants, U visa holders, T visa holders, refugees, and asylees. Lawful permanent residents too are not affected by this rule.

What Changes Under the Public Charge Rule?

Before the update implementation by DHS, very few people were denied admission into the United States based on Public Charge. It didn’t matter whether they’d use any public benefits in the future. But now we can expect a dramatic change. With this update, DHS is looking to expand the definition of Public Charge.

The following new criteria will be considered for evaluation:

Existing Use of Government Benefits

The new rule would be expanding the definition and coverage of common benefits provided by the government to its citizens. The government benefits that would be looked at are:

• Status quo benefits like SSI, TANF, general assistance, and long-term institutional care.
• SNAP or Supplemental Nutrition Assistance Program (also known as Food Stamps)
• Section 8 housing & Rental Assistance program
• Housing subsidies provided by the federal government
• Non-emergency Medicaid benefits (children under the age of 21, physically disabled people, pregnant women, mothers within 60 days of giving birth are exempted)

If you’re using any of the above government benefits for more than 12 months within a 36-month window while applying for a change in status, then chances are you’ll be classified as a “public charge”. DHS will not penalize you for using the benefits on behalf of your spouse or children.

Chances of Use of Government Benefits In The Future

DHS evaluates the chances of you becoming a public charge in the future. These factors are taken into consideration:

• Age. If you’re too young than the age required for minimum full-time jobs in the United States, which is 18, or older than the minimum early retirement age for social security, which is 61, then you could be denied admission into the US based on the public charge rule.
• Current and past health. Any and every medical condition you have been through will be scrutinized. The existing medical examination test will likely be broadened too.
• Size of the family. As a rule of thumb, the more members you have, the likelihood of being denied increases.
• Skills. DHS will look into your academic and employment history to determine the level of skill you possess for obtaining and maintaining jobs.
• Financial health. Above and beyond, DHS will look into your income sources, bank history, and assets to determine your financial health, which greatly determines your eligibility. Remember, the main objective is to ensure that you will not become a burden on the US economy.

Financial Resources

DHS will introduce a new form titled “Form I-944, Declaration of Self-Sufficiency”. This form would collect information that would help officers determine the likelihood of an applicant becoming a public charge under the new criteria. This is not to be confused with “Affidavit of Support” is used when sponsoring a visa.

But under the new rules, the same financial requirements imposed on sponsors will also be imposed on the beneficiary. Applicants will have to demonstrate household income and source of income. The previous requirement of at least 125% higher than the Federal Poverty Guidelines is now raised to 250%. So a couple would be required to show an annual household income of $41,150 or higher.

Will the Rule Affect Permanent Residents Seeking Citizenship?

The expansion in definition to public charge will change the way DHS grants citizenship. Mainly, they will have to demonstrate that they have not received any public benefit for 12 months in a single 36-month period window. Out of fear, many permanent residents are dis-enrolling themselves from any form of benefits they might be receiving.

Will the Rule Affect Visa Applicants from Abroad?

A wide range of temporary visa applicants from abroad will be affected by the changes in public charge rules. This also includes an H-1B visa issued to high skilled labor. They will have to demonstrate their financial health and skill level. These changes were reflected in the Foreign Affairs Manual which is used by consular officers in determining the eligibility of an applicant.

Will the Rule Affect Sponsors of Green Card Applications?

Many of the requirements for sponsors will remain the same. The rule focuses more on the ability of the beneficiary. So outside of the current norms, sponsors of Green Card applicants are less likely to get affected. But the existing “Affidavit of Support” remains in place.

Frequently Asked Questions (FAQ)

What is the Public Charge Rule?

The Public Charge Rule is a term used in U.S. immigration law to refer to an individual who is likely to become primarily dependent on the government for subsistence. This determination can affect the eligibility for admission or adjustment of status to permanent residency.

How is public charge determined in immigration cases?

Public charge determination is based on the totality of an immigrant’s circumstances, including age, health, income, education, skills, family status, and the affidavit of support, if required. The use of certain public benefits may also be considered.

What types of public benefits are considered in public charge determinations?

Benefits considered include Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), state general assistance programs, and long-term institutional care at government expense. Use of Medicaid, SNAP, and housing benefits may also be considered.

Does receiving public benefits automatically make someone a public charge?

No, receiving public benefits does not automatically make someone a public charge. It’s a consideration based on a range of factors, and not all public benefits are factored into the public charge determination.

How does the public charge rule affect green card applicants?

Green card applicants are subject to the public charge rule assessment, which can impact their eligibility for permanent residency. Applicants may need to prove they are not likely to become a public charge.

What is the Affidavit of Support in relation to the public charge rule?

The Affidavit of Support (Form I-864) is a document an immigrant’s sponsor files on their behalf, promising to support the immigrant financially. This is to show that the immigrant will not become a public charge.

Can the use of healthcare or educational services make someone a public charge?

The use of healthcare, nutrition, housing, and educational programs does not generally make someone a public charge. However, long-term institutionalized care under Medicaid may be considered.

Does the public charge rule affect non-immigrant visa holders?

Non-immigrant visa holders (like tourists and students) are generally not subject to the public charge rule. However, it may apply when they seek to change their status or extend their stay.

How does the public charge rule affect refugees and asylum seekers?

Refugees, asylum seekers, and other humanitarian immigrants are generally exempt from the public charge rule.

Have there been recent changes to the public charge rule?

Yes, the public charge rule has undergone changes in recent years, especially with varying interpretations and policies under different U.S. presidential administrations. It’s important to consult current guidelines or an immigration attorney for the latest information.

Conclusion

These changes made to Public Charge rules are causing large-scale panic among immigrants both inside and outside of the United States. Before taking any step regarding your eligibility, it is advised to get in touch with an immigration attorney.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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