The term “public charge” refers to an individual primarily dependent on the government for financial support and basic needs, either through receiving certain public benefits or through long-term institutionalization at the government’s expense. The concept of public charge has been part of U.S. immigration law for over a century ensuring that immigrants entering or remaining in the country are self-sufficient and will not burden the government and taxpayers.
U.S. Citizenship and Immigration Services (USCIS) is responsible for enforcing the Public Charge Rule. If an individual is deemed likely to become a public charge, it can have severe consequences for their immigration status. Being considered a public charge can make someone inadmissible to the U.S., meaning that they may be denied entry into the country. If they are already in the U.S., they may be denied adjustment of status to become a lawful permanent resident (green card holder). In some cases, individuals considered public charges may also be subject to removal or deportation.
In this blog post, we will provide an overview of the factors considered in determining an individual’s public charge status and explore the implications of this rule on immigrants and their families. We will also address common questions and concerns surrounding the Public Charge Rule and offer tips on navigating this complex policy.
By gaining a deeper understanding of the Public Charge Rule, you can better prepare for the immigration process and avoid potential setbacks.
The Immigration Act of 1882 marked the first instance of the public charge provision in U.S. immigration law. It granted immigration officers the authority to refuse entry to individuals deemed unable to support themselves financially and were thus likely to become a public charge.
The Immigration Act of 1917 expanded the list of grounds for inadmissibility, including mental and physical disabilities that could result in an individual becoming a public charge.
The Immigration and Nationality Act of 1952 (INA) provided a more comprehensive definition of a public charge. It specified that individuals could be deemed inadmissible if they were likely to require public assistance for their maintenance.
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) introduced the concept of an Affidavit of Support (Form I-864), which required immigrants to have a financial sponsor who could provide evidence of their ability to support the immigrant and prevent them from becoming a public charge.
The Immigration and Naturalization Service (INS) issued the 1999 Field Guidance that clarified the public charge determination process. The guidance emphasized that only the receipt of cash assistance for income maintenance or long-term institutional care at the government’s expense would be considered in public charge determinations.
In 2019, the Trump administration implemented the Inadmissibility on Public Charge Grounds Final Rule, which significantly broadened the definition of a public charge and expanded the list of public benefits considered in determining an individual’s public charge status.
Under the rule, USCIS officers were allowed to consider an applicant’s use of certain public benefits, including non-cash benefits like food stamps and Medicaid, when making a public charge determination. The rule also required applicants to provide more extensive documentation of their finances, health, and education.
The Trump administration’s changes to the Public Charge rule were controversial and faced multiple legal challenges. Critics argued that the rule would harm immigrant families and discourage them from accessing essential public benefits, even if they were eligible. In particular, the rule was criticized for potentially disproportionately impacting low-income immigrants and communities of color.
In July 2020, several federal courts issued preliminary injunctions against the rule, effectively halting its implementation. The courts cited concerns that the rule was arbitrary, capricious, and violated the Administrative Procedure Act. The legal battles continued until March 2021, when the Biden administration announced that it would be taking steps to revise the rule.
The Biden administration officially rescinded the 2019 public charge rule and reverted to the 1999 Field Guidance. This action restored a more limited scope to the public charge determination process and excluded various non-cash public benefits from consideration.
The determination of public charge status is made by the USCIS and is based on a totality of circumstances test.
While receiving one or more of these benefits does not automatically make someone a public charge, it can be a factor in USCIS’s overall assessment of their likelihood of becoming a public charge.
This includes any cash assistance programs provided by federal, state, local, or tribal governments designed to help individuals and families meet their basic needs. Examples of such programs include General Assistance (GA) or other similar cash aid programs.
SSI is a federal program that provides financial assistance to individuals who are aged, blind, or disabled and have limited income and resources. SSI benefits help eligible individuals meet their basic needs, such as food, clothing, and shelter.
TANF is a federal program that provides financial assistance and support services to low-income families with children. This program aims to help families achieve self-sufficiency by offering cash aid and other supportive services, such as job training and childcare assistance.
Any form of long-term care or institutionalization provided by a state or local government, either directly or through contracted services, and for which the individual does not have to pay. This includes nursing home care, assisted living facilities, and any other type of institutionalized care.
USCIS notes that only a few applicants are eligible for these public benefits before adjustment of status.
Under the 2022 Final Rule, these programs will not affect your overall likelihood of being deemed a public charge.
Immigrants can access several medical assistance programs without impacting their immigration journey, including immunizations or testing for infectious diseases, treatments for COVID-19 (including vaccinations), or health insurance through the Affordable Care Act.
Additionally, you can access these programs:
The USCIS now states that it will not consider specific nutrition programs as a part of the public charge determination because these programs are aimed at improving an applicant’s health and well-being.
By excluding certain nutrition programs from consideration in public charge determinations, the USCIS promotes equitable access to essential nutrition programs and ensures that individuals and families have access to the food they need to lead healthy and productive lives.
The USCIS recognizes that access to education and childcare can help individuals acquire the skills and knowledge necessary to become self-sufficient and contribute to their communities.
Cash payments for childcare assistance and childcare-related services.
Applicants can receive financial and non-financial aid under the Stafford Act or the American Rescue Plan Act.
Various housing programs and benefits exist to support individuals and families facing housing insecurity. These programs strive to provide affordable and stable housing options, ensuring people can access safe and adequate living conditions.
The USCIS clarifies that these programs – and many more – are excluded from consideration in public charge determinations. By ensuring equitable access to necessary services and resources, the agency can help immigrants become self-sufficient while allowing them to pursue a successful immigration journey.
Immigrants can file for these credits without worrying about jeopardizing their immigration status:
Certain individuals are exempt from the public charge rule including refugees and asylum seekers, survivors of domestic violence/trafficking, crime victims (U visas), applicants for TPS, children under 21 years old, and pregnant women. Those who apply for green cards through a family member may also be eligible for an exemption if they have not received any public benefits, or if they are considered an “immediate relative” to the sponsor.
Our Scott D. Pollock & Associates, P.C. team can help you determine if you’re eligible for exemptions.
Form I-944, Declaration of Self-Sufficiency is a crucial document in the public charge determination process. Through Form I-944, applicants provide detailed information about their financial resources, employment, education, and other factors relevant to their ability to maintain self-sufficiency without relying on public benefits.
USCIS uses the information provided on Form I-944 to assess whether an applicant is likely to become a public charge under the “totality of the circumstances” standard.
The Affidavit of Support, Form I-864, is another important document in the public charge determination process. This form is required for most family-based and some employment-based immigrants seeking permanent residence in the United States.
By submitting Form I-864, a financial sponsor (typically a U.S. citizen or lawful permanent resident family member) agrees to support the intended immigrant and ensure that they will not become a public charge.
The financial sponsor must demonstrate that they have an income or assets at or above 125% of the Federal Poverty Guidelines for their household size. This legally binding document indicates that you will have adequate financial support and is less likely to rely on public benefits in the future.
Preventing or fighting a public charge determination requires a comprehensive understanding of the immigration process and the specific factors considered by USCIS.
Here are some steps to prevent or challenge a public charge determination:
Our team at Scott D. Pollock & Associates, P.C. have extensive experience handling various immigration matters, including public charge determinations. We can provide guidance, resources, and representation to help you prevent or challenge a public charge determination and work towards a successful immigration outcome.
Navigating the immigration process can be a complicated and overwhelming experience. At Scott D. Pollock & Associates, P.C., we understand the unique challenges immigrants face and are committed to providing personalized legal assistance every step of the way.
Our experienced Chicago immigration attorneys have extensive knowledge of U.S. immigration laws and regulations and can help you understand the public charge rule and its potential impact on your case.We are committed to helping immigrants achieve their goals and work towards a successful outcome. Contact us today for a free consultation to discuss your situation and explore all available options. Fill out our online form or call us at (312) 444-1940.View Similar Articles