What Is the New Public Charge Rule,

and Will It Affect Your Family?

In August of 2019, the Trump Administration announced a new DHS rule to make changes to “public charge” policies that govern how the use of public benefits may affect individuals’ ability to enter the U.S. or adjust to legal permanent resident status (in other words, get a green card). The rule expanded the programs that DHS and USCIS will consider in public charge analyses to include previously excluded health, nutrition, and housing programs.  The rule’s primary goal is to better ensure that individuals who apply for admission to the U.S., seek an extension of stay or change of status, or apply for adjustment of status, are self-sufficient. The rule also identifies a range of consequences on the health and financial stability of families, as well as direct and indirect costs associated with the rule. The following article provides an overview of the new rule and its implications for immigrant families.

Currently, immigration officers decide public charge by evaluating whether an applicant for a green card or an individual seeking to enter the United States on certain visas is likely to become primarily dependent on the government for support. Primary dependence refers to reliance on cash-aid for income support or long-term care paid for by the government. To decide whether an individual is a public charge, immigration officers rely on multiple factors specified in the INA. They must also rely on the “affidavit of support,” which is a contract signed by the immigrant’s sponsor, indicating that the sponsor will financially support the immigrant. This affidavit of support offers strong evidence that the immigrant will not become primarily dependent on the government.

But now, DHS is expanding the definition of what it means to be a “public charge.” The new rule will allow immigration officials decide who is admitted into the U.S. or is allowed to adjust their status to that of a lawful permanent resident based on their likelihood of becoming a public burden.  It empowers officers of USCIS to access a person’s circumstances, including like age, health, education, assets and financial status.

The new rule considers a person a public charge if they have used one or more public benefits for more than 12 months in the aggregate within any 36-month period. Under the new rule, Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground. The proposal also considers that all use of cash aid, including not just TANF and SSI but also any state or local cash assistance program, could make an individual inadmissible under the public charge ground.

The rule allows immigration officers to consider English proficiency (positive), or lack of English proficiency (negative); medical conditions and availability of private health insurance; and past use of immigration fee waivers. The rule creates “heavily weighted negative factors” and a couple “heavily weighted positive factors.” Heavily weighted positive factors include having a household income of at least 250% of the federal poverty level. It is not clear how an officer should decide a case that has a heavily weighted factor or both heavily weighted negative and positive factors.

It will be possible to post a bond when an immigration officer finds inadmissibility based on public charge. Bonds will be highly discretionary, and the new rule says that some factors that will generally make an applicant ineligible for a bond. During the last 20 years, the posting of such bonds has been extremely rare. Applicants who are initially determined likely to become a public charge by the USCIS may be offered the opportunity to post a public charge bond of at least $8,100. The bond may be cancelled only upon the immigrant’s death, permanent departure, five years as a lawful permanent resident, or naturalization.

Congress has exempted certain classes of immigrants from the public charge ground of inadmissibility. For instance, refugees, asylees, and Afghans and Iraqis with special immigrant visas are exempt from public charge inadmissibility. This rule includes provisions clarifying the classes of individuals who are exempt from this rule, as well as those who are able to obtain a waiver of public charge inadmissibility.

The rule will require immigrants to attach a Declaration of Self-Sufficiency when applying for a green card in addition to the many forms already required, and it will apply to adjustment of status applications postmarked as of October 15, 2019. However, the rule will not apply to adjustment of status applications that are pending or postmarked before that date.

Additionally, legal challenges may delay implementation as there are currently 13 states challenging the rule in court.  The government has defended the rule and argued that the U.S. should welcome immigrants on merit.  In furtherance of that goal, this new rule will mainly impact those seeking permanent resident status through family member petitions. Immigrants should consult with an immigration expert who understands public charge to learn whether the public charge rule even applies to them or their family.