Frequently Asked Questions

Grounds of Inadmissibility are grounds which may make an applicant for an immigration benefit ineligible for that benefit. Grounds of inadmissibility are typically evaluated when someone applies for a green card or admission (entry) into the United States. There are many grounds of inadmissibility. ‘Public Charge’ is one of the less frequently used grounds of inadmissibility.

Historically, ‘public charge’ determinations were made by evaluating whether a non-citizen “was likely at any time to become a public charge.” However, the phrase “public charge” was not well defined.

In August 2019, the Trump administration published a final rule that proposed to change the way that immigration officials evaluated an applicant for the ‘public charge’ ground of inadmissibility. These changes represented a significant departure from the way the Department of Homeland Security (DHS) has historically evaluated this ground of inadmissibility. On February 24, 2020, the new public charge rules took effect.

Background

  • What or Who is a “Public Charge?”

A ‘public charge’ is someone who is primarily dependent on public benefits or government assistance to survive. The new rule substantially broadens the list of programs, that if used, would make someone a public charge.

  • What is an Affidavit of Support?

An Affidavit of Support is a contract between the ‘sponsor’ and the US government to support the ‘newly arrived’ green card holder, financially. The Petitioner must file an affidavit of support; however, sometimes, they need a ‘joint sponsor,’ who would also file an affidavit of support.

  • To Whom Does the Public Charge Ground Apply?

The public charge ground of inadmissibility applies to people ‘seeking admission’ to the United States, which typically takes one of two forms:

  • Applicants for a green card (either adjustment of status, or consular processing), or
  • Applicants for admission (entry) into the US (nonimmigrant visa or visa waiver program).

Certain applicants are exempt from the public charge grounds, including refugees, asylees, U & T-visa applicants & VAWA applicants.

Changes to the Public Charge Ground

  • Which Government Programs Used to Be Included in the Public Charge Analysis?

Under 1999 guidance by the Immigration and Naturalization Service, a public charge was someone who is, or is likely to become “primarily dependent on the government for subsistence, as demonstrated by either: (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”

Under the 1999 guidance, short term institutionalization for rehabilitation did not render someone a public charge.

Additionally, receipt of non-cash benefits would not render an applicant inadmissible as a public charge. Common benefits that were explicitly excluded from the analysis were:

  • Medicaid (except for long-term institutional care);
  • CHIP (Children’s Health Insurance Program);
  • Food programs (including SNAP, WIC, school lunch, and school breakfast);
  • Housing benefits;
  • Child care services;
  • Emergency disaster relief;
  • Foster care and adoption assistance;
  • Educational assistance (including head start);
  • Job training programs; and
  • Community-based programs (such as short term shelters and soup kitchens).

Aside from long-term institutionalization at government expense (such as a nursing home or mental health institution), cash assistance programs were included in the analysis. Cash assistance included the following:

  • State and local cash assistance programs;
  • Temporary Assistance for Needy Families (TANF); and
  • Supplemental Security Income (SSI);

 

  • Which Government Programs Were Added in August 2019?

Under the new public charge rule, receipt of the following public benefits will be considered in the public charge analysis:

  • Federal, state and local cash assistance programs;
  • TANF;
  • SSI;
  • SNAP (Supplemental Nutrition Assistance Program);
  • Non-emergency Medicaid (with exceptions for pregnant women, the 60 days after pregnancy, school-based services, and children under 21);
  • Section 8 Housing Assistance (Housing Choice Voucher Program);
  • Section 8 Housing Assistance (Project-Based Rental Assistance);
  • Federally subsidized public housing;

A determination that someone is a “public charge” would be triggered if an applicant has received one or more of the above benefits for more than 12 months (in the aggregate) in any 36-month period. If you receive two separate benefits in any one month-that will be counted as two months. An applicant will also be evaluated for the “likelihood” of future use of public benefits.

  • Which Government Programs are Not Included in the New Determination?
    • Government benefits funded by the state, should not be considered in the public charge determination (except for cash programs);
    • Emergency medical assistance;
    • Children’s Health Insurance Program (CHIP);
    • Social Security Disability Insurance;
    • Disaster Relief;
    • Medicare Part D;
    • Head Start;

 

  • Additional Factors Considered in the Public Charge Determination

The following factors will also be considered in the public charge determination.

  • Age: Applicants between 18-61 are more likely to be able to find gainful employment;
  • Health: Any health condition that may render you unable to work could be a negative factor;
  • Family Size: Having a larger family may increase the likelihood that an applicant will seek public benefits in the future;
  • Education: Applicants with higher education are more likely to find employment, and earn higher wages;
  • Financial Status: USCIS will evaluate your income, assets, debts, and credit history to ascertain financial solvency;
  • Insufficient Financial Resources: In assessing financial solvency, USCIS now requires applicants to file Form I-944, Declaration of Self-Sufficiency, where applicants document their assets, liabilities, and other employability factors;
  • Employment History: If you are not a full-time student you should demonstrate stable employment history or the prospect of future employment;
  • Health Insurance: Having health insurance that is not subsidized by the Affordable Care Act tax credits will be considered a positive factor.
  • Chronic Medical Conditions: Any condition for which the applicant may not be able to afford treatment or medication, will be a negative factor;
  • Household Resources: Household resources at or above 250% of the federal poverty line will be a positive factor;
  • Income: If an applicant is authorized to work, and has an income of at least 250% of the federal poverty line, that will be considered a positive factor; DHS would like to see applicants earning at least 125% of the federal poverty line.

Non-Citizens Applying to Enter the US from Abroad OR Applying for Adjustment of Status: FAQ

  • I am applying to enter the US from abroad, do the public charge grounds apply to me?

The public charge ground of inadmissibility applies to you; however, the determination is made per Department of State guidelines.

If you are applying for a green card abroad, you must now file form DS-5540, Public Charge Questionnaire, along with your other documents.

  • If I have used government programs in the past, will that affect my application for a green card?

Yes, DHS will evaluate whether an applicant has applied for, been approved for, or used public benefits, since the date the new rule came into effect.

  • My children receive public benefits, how will that affect my application for a green card?

DHS should not consider any public benefits that your children or any dependent receive.

  • Should my family and I stop using the government assistance that we are receiving now?

If you are receiving public benefits on the list of ‘prohibited benefits,’ then you likely should stop receiving those benefits. A consultation with an immigration attorney may provide guidance.

  • What if my children or I receive Medicaid, food stamps, Obamacare, WIC, or Head Start-how will that affect my application?

Benefits received by your children should not be considered in your application; however, if you are receiving a benefit that is listed as a ‘public charge’ consideration, you should discontinue receipt of that benefit.

WIC is not an enumerated public benefit under the new rule. Head Start is not an enumerated public benefit under the new rule. You may receive Obamacare; however, you should avoid the subsidy.

You may not receive short-term Medicaid unless one of the exceptions applies to you. SNAP (food stamps) is now an enumerated public benefit.

  • If I receive a public benefit that is not on the ‘public charge’ list, how will that affect my application?

If you are receiving a benefit that is not enumerated on the list, receipt of that benefit should not affect your application.

 

Information for Lawful Permanent Residents & United States Citizens;

  • I have a green card; how do the public charge grounds affect me?

You may be subject to the public charge ground of inadmissibility if you depart the United States for more than six months and present yourself for re-entry. If you plan to be abroad for more than six months, you should consult an immigration attorney first.

If you are an LPR and receive public benefits, you are not subject to the public charge ground of inadmissibility when you renew your green card. Nor are you subject to it when you apply for naturalization.

  • I am the economic sponsor for an applicant for a green card, how does the public charge ground affect me?

You will have to file form I-864, Affidavit of Support, on behalf of the applicant. You will have to show that you earn a certain amount of money per year, or that you have sufficient assets to support the applicant.

  • I am a United States citizen, do the public charge rules apply to me? Can naturalized citizens lose their citizenship if they receive public benefits?

The public charge grounds do not apply to United States citizens (obtained at birth, or through naturalization). If you are a United States citizen and you need public benefits, you should continue to receive the benefits for which you are eligible. You will not ‘lose’ your citizenship for receiving public benefits.