The “public charge” standard is old in US immigration policy. Its function is to decide if a foreigner who is trying to move to the U.S. or for a green card would be getting too reliant on the government. A “public charge” first appeared in US immigration legislation back in 1882 but was not fully enshrined until 1999 when the Immigration and Naturalization Service (INS) issued the “1999 Interim Field Guidance”.
At its basic, a “public charge” relies on the state for essential living necessities, be it cash assistance to maintain income or care in a state-run facility. The US Department of Homeland Security (DHS) and the U.S. Department of State (DOS) still abide by this policy today.
The Public Charge Rule
The public charge rule was largely rewritten by the Trump administration in 2019. The rule extended what counted as a “public charge” to people who might in the future need government assistance (as opposed to just those who were already dependent). These were food stamps, shelter, and non-emergency Medicaid.
But then in 2021, the Biden administration undid most of these changes and reintroduced the public charge rule as it had been originally narrowed to. The rule in 2022 follows the 1999 guideline, with two kinds of assistance qualifying someone for public charge:
Cash Income Maintenance Assistance – These include things such as Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF) programs that help to give low-income individuals and families immediate financial assistance.
Long-Term Care Institutionalization at Government Cost – Hospitalization for the long-term in institutions such as nursing homes or institutions of mental health that are covered by the government.
What Does This Mean For Green Card and Visa Applicants?
If you are seeking a green card or U.S. visa, you don’t need to file Form I-944 or DS-5540, which is used to calculate your dependency on public benefits. But now the public charge questions are also on Form I-485 (green card applicants) beginning on December 23, 2022.
This is the good news: most applicants can still dodge a public charge rejection by proving that they have a funding sponsor. This sponsor usually a U.S. citizen relative must show that their income exceeds a threshold, generally 125% of the Federal Poverty Guidelines, to make sure the applicant isn’t going to depend on the government.
An Introduction to the Public Charge Rule: A Short History
The public charge rule was first introduced by Congress in 1882 to enable the United States to deny admission to anyone who could become financially dependent on the state. Congress modified this law in 1891 to apply the rule to anyone “possible to become a public charge”. Yet only in 1999 did the Department of Homeland Security (DHS) officially establish a public charge as someone who largely lives on government funds.
For decades, those applicants who had a financial sponsor often a family member — got around the public charge ceiling. It was this sponsor who needed to show that their income surpassed the required amount, 125% of the Federal Poverty Guidelines.
What Has The 2019 Public Charge Rule Changed?
This 2019 rule expanded dramatically what qualifies as government aid. It wasn’t relegated to welfare and institutionalization anymore. It stacked on other universal rewards, such as:
Supplemental Nutrition Assistance Program (SNAP) (food stamps)
Section 8 housing assistance
Non-emergency Medicaid (with some exceptions)
Furthermore, the rule weighed whether a candidate would in future use public benefits according to age, health, family size, education, competence, and income. This policy also put more money on the line for applicants: a stronger income or property to show that they wouldn’t be in the public purse.
What Did the Biden Administration Do With the 2019 Changes?
With the election of President Biden, his administration rescinded the 2019 change. The Biden administration stopped the 2019 DHS rule in March 2021 and pulled it back in 2022 to the easier 1999 rule. The new rule, adopted in September 2022, narrowed the scope of a public charge, and it simplified how government benefits could be used by applicants.
What Is The Public Charge Rule Right Now?
It now looks at whether a candidate is “primarily dependent” on government funding, with effect from December 2022. The two basic public goods for which one can think are:
Cash Assistance – Such as SSI, TANF, and other state or local benefits.
Institutionalization for Years at Government Cost – This means being institutionalized for many years at the cost of the government (in nursing homes).
Any candidates that avail themselves of one of these benefits may be considered at high risk for public charge and could be denied or postponed in green card or visa applications.
So What Does This Mean
This rule could be used for a green card or visa application and you will need to know it. But do note that this can be ruled out for the vast majority of applicants who demonstrate they have a financial sponsor and are at least making the minimum wage.
You’ll have to fill out the new Form I-485 (which includes information on how you use government benefits if you are an applicant living outside the United States). Fortunately, you won’t need to submit other forms such as the I-944 that you were under the 2019 rule.
Who is Subject to the Public Charge Rule?
1. Green Card applicants The public charge rule is mostly for those who are applying for a green card (permanent residence) in the United States. These are candidates for permanent residency for any number of reasons including:
Family connection with a U.S. citizen or legal permanent resident
Sponsorship by a U.S. employer
As well as family and work-based green card holders, temporary visa holders (eg, H-1B skilled worker visa holders) who apply for an extension or status change could be affected. These recipients needn’t fill out additional forms such as Form I-944, but they will still have to show they haven’t used government benefits for more than 12 months out of every 36 months.
2. Rules Exemptions from Public Charge Rule The public charge rule is not required of all applicants. To be specific, some people are not subject to the rule, for example:
Refugees
Asylees
Victims of domestic violence
People from other special categories
IMPACT ON STATE-BASED PURCHASER’S NEED FOR THE US. Citizenship
The public charge rule doesn’t usually have any effect on an applicant’s eligibility for U.S. citizenship for legal permanent residents (green card holders). But if they got addicted to government benefits within the first five years of receiving a green card, that could have an impact, but only if they got addicted before they received the green card.
For instance, if a green card holder is in good health but later gets into an accident that necessitates government aid, he or she will not be deported for a public charge.
And sometimes, when green card holders enlist a government fee waiver in the course of their U.S. citizenship applications, it’s unclear if they were truly enlisting government assistance which could make citizenship applications ambiguous.
So What About the Expat Visa Candidates?
Those seeking a visa abroad also fall foul of the public charge rule but in a different way. The US Department of State issues visas for foreign nationals, and it recently extended the public charge rule. While DHS and the Department of State initially had similar policies, in January 2018, the State Department changed it to give consular officers greater leeway in rejecting visa applications on public charge grounds.
Sponsors of Green Card Applicants
US citizens and permanent residents have to file an Affidavit of Support if they want to sponsor a family member for a green card. This is an official agreement to pay the immigrant if needed so that he won’t be dependent on the public purse. When the green card holder avails himself of public benefits, the sponsor might even have to pay back the government for the benefit-cost. Yet it is not the case often enough because the majority of green card holders are not even eligible for public benefits at all.
In May 2019, the U.S. government published a rule that would bring about more invasive recoveries against sponsors if their immigrant relatives took public benefits. This has irked sponsors, but don’t be fooled: the majority of applicants don’t need any government funding.
The public charge rule has been modified a few times over the years and its meaning has also changed by administrations. Some green card and visa applicants get scrutinized harder, but the policy has some loopholes. This has had the biggest effect on people applying for green cards based on kinship or work and those on temporary visas for extensions or status adjustment.
Because of the generality of the public charge rule, there’s some confusion around how to apply it, but for most people, it will be a matter of adherence to the requirement that they do not need certain government benefits. Sponsors also have to know their taxes owed to the government if sponsored family members should require help.
Keep up to date on what is going on in the US immigration process at Law and Visas.
