The “public charge” rule has been part of U.S. immigration law since 1882, though it wasn’t fully defined until May 1999 when the Immigration and Naturalization Service (INS) introduced the “1999 Interim Field Guidance.” This definition states that a “public charge” is someone who depends on the government for their basic needs, such as receiving public cash assistance or long-term care paid by the government. This guidance is still used today by the Department of Homeland Security (DHS) and the Department of State (DOS).
What is the Public Charge Rule Today?
In the past, the public charge rule mainly concerned immigrants relying on certain government assistance. Under the Trump administration, this rule expanded significantly, making it harder for people to qualify for green cards or visas if they were “likely” to need government help in the future. Two new public charge regulations were introduced in 2019 — one for those applying for green cards within the U.S. and another for those applying from outside the U.S.
However, these rules were challenged in court and, under the Biden administration, were reversed in 2021. The Biden administration then proposed a new version of the rule in 2022, which largely reflects the 1999 guidance. The 2022 rule defines a “public charge” as someone who relies heavily on government aid, including:
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- State or local cash assistance
- Medicaid or government-funded long-term care programs, such as nursing homes or mental health institutions
This new rule takes effect from December 23, 2022, and applicants will no longer need to submit additional forms like Form I-944 or DS-5540 when applying for permanent residency or a visa.
A History of Public Charge in U.S. Immigration Law
The public charge rule dates back to 1882 when Congress first gave the government the power to deny a visa to anyone who could not support themselves without becoming a “public charge.” Over the years, the definition of public charge evolved, with key updates in 1999, which made it clearer. Since then, the general standard has been someone who is “primarily dependent on the government for subsistence,” such as using public cash benefits or receiving long-term care at government expense.
For many years, the public charge rule did not impact most green card applicants because they were usually sponsored by a U.S. citizen or family member who could prove they had enough income to support them without relying on government assistance. This income threshold is set at 125% of the Federal Poverty Guidelines — currently about $21,137 for most couples without children.
How Did the 2019 Changes Affect Immigrants?
Under the Trump administration’s 2019 rule, the definition of “public charge” was expanded to include not only those receiving government assistance but also those “likely” to use public benefits in the future. This included benefits like food stamps, Section 8 housing assistance, and Medicaid. Applicants could be denied a visa or green card if they had used these benefits for more than 12 months over 36 months.
This rule also introduced a new form, the “Declaration of Self-Sufficiency,” which asked applicants to provide more financial details to show they could support themselves. This was in addition to the financial support from their sponsor.
Key Factors for Applicants Under the 2019 Rule
The 2019 rule required immigration officers to consider many factors, including:
- Age: Applicants under 18 or over 61 could be seen as less likely to work.
- Health: Medical conditions that could limit workability were considered.
- Family Size: More dependents could increase the likelihood of a denial.
- Skills: Applicants had to prove they had the education, skills, and experience to find work.
- Financial Stability: Beyond income, applicants had to show they had enough savings or resources to avoid relying on government aid.
Who Was Affected?
This expanded rule applied to many green card applicants, including those applying through family sponsorship or employment. It also applied to temporary visa holders, such as those on H-1B visas, who needed to extend or change their status. However, the rule did not apply to individuals who were exempt from the public charge test, such as refugees or those who had been victims of domestic violence.
Exemptions and Special Cases
The public charge rule did not apply to all applicants. Some categories of people, like refugees, asylum seekers, and victims of domestic violence, were exempt from the rule. Furthermore, permanent residents (green card holders) could not be deported for becoming a public charge unless it happened within five years of obtaining their green card and it was related to conditions before they obtained it.
What About Sponsors of Green Card Applicants?
U.S. citizens or permanent residents who sponsor family members for green cards are required to sign an “Affidavit of Support,” promising to financially support the applicant. If the applicant uses public benefits, the government could seek reimbursement from the sponsor. However, the majority of green card applicants do not qualify for these benefits, so this generally doesn’t impact sponsors.
What’s Next?
The public charge rule has seen many changes over the years, and the Biden administration’s 2022 version has simplified the process and returned to a more balanced approach. It’s important for anyone navigating the immigration system to stay updated on these changes, especially if you are applying for a visa or permanent residency.
Public Charge and COVID-19
Temporary Changes During the Pandemic
The COVID-19 pandemic prompted significant changes to the public charge rule, particularly regarding how immigrants access healthcare. Under the previous administration, the public charge rule expanded to include non-cash benefits such as Medicaid and food assistance, creating a chilling effect where many immigrants avoided seeking necessary services for fear of jeopardizing their immigration status. However, during the pandemic, the Biden administration reinstated the 1999 guidance, which clarified that seeking testing, treatment, or vaccination for COVID-19 would not affect an individual’s public charge determination.This temporary adjustment aimed to ensure that immigrants could access essential healthcare services without fear of negative immigration consequences. As a result, many individuals were encouraged to seek medical care for COVID-19 without worrying about being labeled a public charge.
Concerns About Immigrants Seeking Healthcare During Emergencies
Despite the temporary changes, concerns persisted about the long-term implications of the public charge rule on immigrant health-seeking behavior. Many immigrants remained hesitant to utilize healthcare services due to lingering fears from previous policies that penalized the use of public benefits. This reluctance can have serious public health implications, particularly during emergencies like a pandemic, where timely access to healthcare is crucial for controlling disease spread and ensuring community safety.
Navigating the Public Charge Test
Tips for Preparing for the Test
- Understand the Criteria: Familiarize yourself with what constitutes a public charge under current regulations. The focus is primarily on cash assistance for income maintenance and long-term institutional care.
- Gather Documentation: Collect evidence demonstrating your financial stability and self-sufficiency, such as bank statements, employment letters, and proof of income.
- Seek Professional Guidance: Consider working with an immigration attorney or consultant who can help you navigate the complexities of the public charge test and prepare your application effectively.
How to Document Financial Stability and Self-Sufficiency
- Show Consistent Income: Provide pay stubs or tax returns that demonstrate a steady income over time. This will help establish your ability to support yourself without relying on public benefits.
- Asset Documentation: Include documentation of any assets you own, such as property or savings accounts, which can further illustrate your financial stability.
- Affidavits of Support: If applicable, consider obtaining affidavits from family members or friends who are willing to support you financially if necessary.
Working with Immigration Attorneys and Consultants
Engaging with experienced immigration professionals can significantly enhance your chances of successfully navigating the public charge test. They can provide valuable insights into:
- Current Regulations: Understanding how recent policy changes may impact your case.
- Application Preparation: Ensuring that all required documentation is complete and accurately presented.
- Response Strategies: Develop effective strategies for responding to any requests for evidence from USCIS.
FAQs About the Public Charge Rule
Common Myths and Misconceptions
- Myth: Using any public benefit will automatically make me a public charge.
- Fact: Under current regulations, only cash assistance for income maintenance and long-term institutional care are considered in public charge determinations. Most non-cash benefits do not affect this assessment.
- Myth: Seeking medical treatment for COVID-19 will negatively impact my immigration status.
- Fact: There are no immigration consequences for seeking COVID-19 testing, treatment, or vaccination under current guidelines.
What to Do If You’ve Used Public Benefits
If you have utilized public benefits:
- Document Your Use: Keep records of any benefits received and understand how they may impact your immigration status.
- Consult an Attorney: If concerned about potential implications on your application or status, consult an immigration attorney who can provide personalized advice based on your situation.
Impact on Visa Applications Versus Green Card Applications
The public charge rule applies differently depending on the type of application:
- Visa Applications: For nonimmigrant visa applications (e.g., tourist or student visas), applicants may face scrutiny regarding their ability to support themselves while in the U.S., but only specific cash benefits will be considered.
- Green Card Applications: For those applying for permanent residency (green cards), a more comprehensive assessment occurs regarding financial stability and potential reliance on public benefits.
Stay Informed About U.S. Immigration Updates
Immigration law is constantly changing, and it can be difficult to keep up. Stay updated on any changes to the U.S. immigration system by following laws and Visas on social media. We provide up-to-date information and insights to help you navigate the process with ease.
(Note: This article was last updated on [Date], based on the latest information available regarding the public charge rule and changes in U.S. immigration law.)
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