The Public Charge Rule, Explained


Sep 23, 2018


Among all the measures that the Trump administration has pursued so far to constrain legal immigration, the “public charge rule” could have the biggest impact. This policy is designed to reduce the number of people who are eligible for green cards and other visas, by redefining what makes them dependent on government benefits (or likely to be in the future).

Various legislative proposals to reduce legal immigration have been endorsed by the Trump administration but have effectively zero chance of becoming law. In contrast, the administration believes that it can implement the public charge rule through executive action, without an act of Congress.

The U.S. Department of Homeland Security (DHS) announced a proposed regulation on September 22, 2018, beginning a process that could last well into 2019.

What does the proposed public charge rule say, and how many people could it affect?

This guide will cover:


What does “public charge” mean today?

Congress long ago established that the U.S. government can deny a green card to anyone who “is likely at any time to become a public charge” but without defining what “public charge” means.

Since 1999, immigration officers have adopted the guiding principle that a public charge is someone “primarily dependent on the government for subsistence,” as demonstrated by either (a) using public cash assistance for income maintenance or (b) institutionalization for long-term care at government expense. Specifically, this has included:

  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF), commonly known as “welfare”
  • State and local cash assistance, sometimes called “General Assistance”
  • Medicaid or other programs supporting long-term institutionalized care, such as in a nursing home or mental health institution

Under this policy, very few immigrants have been denied green cards on public-charge grounds, for two primary reasons. First, Congress has already barred most immigrants from using welfare, so prior use of these benefits is out of the question. Second, Congress requires that most green card applicants have a financial sponsor — typically a U.S.-citizen spouse or other family member — who can demonstrate sufficient income to prevent future dependency on government benefits. That income threshold is defined in statute as 125% of the Federal Poverty Guidelines, currently $20,575 for most couples without children.

That’s why, for the past two decades, the vast majority of visa applicants have been able to avoid the “public charge” roadblock by submitting a financial sponsor’s Affidavit of Support, accompanied by evidence of meeting the statutory income threshold.


What would change under the new “public charge rule” proposal?

DHS plans to dramatically expand the definition of “public charge,” so that green card and other visa applicants could be denied not only for being “primarily dependent on the government for subsistence” (the current standard) but also for using “one or more public benefit” in the past or being “likely at any time” receive such benefits in the future.

Under the proposed regulation, DHS would create the following new criteria for denying a visa application from within the United States, including both green cards and temporary (“nonimmigrant”) visas:


(1) Prior use of nearly any government benefit. Instead of limiting the definition of off-limits government benefits to welfare payments and subsidized long-term institutionalization, the new policy would greatly expand the definition to include a wider range of common government benefits.

This means that visa applicants could be denied based on prior use of any of the following benefits. (Note that DHS would not penalize applicants for use of these benefits by a spouse or child, in a departure from previously reported drafts.)


“Monetizable” benefits

A “public charge” denial would be triggered if someone uses the dollar equivalent of $1,821 of the following benefits during a 12-month period over the past three years. (That threshold is based on 15% of the Federal Poverty Guidelines for one person, currently $12,140.)

  • Supplemental Nutrition Assistance Program (SNAP), commonly knowns as “Food Stamps”
  • Section 8 housing and rental assistance

“Non-monetizable” benefits

A “public charge” denial would be triggered if someone uses the following benefits during more than any (non-consecutive) 12 months of the past three years.

  • Nonemergency Medicaid benefits (with other exclusions for children and the disabled)
  • Healthcare subsidies through Medicare Part D
  • Federal housing subsidies

What if somebody used two “non-monetizable” benefits at the same time? That would count double, so the public charge rule would be triggered after just six months instead of 12.

What if somebody uses both kinds of benefits? If they use less than the “monetizable benefits” threshold of $1,821 within 12 months, they could still trigger the public charge rule if they also use “non-monetizable” benefits during any nine months.


It’s important to note that DHS does not have the authority to make anybody ineligible for these benefits, which are administered by other federal agencies under various acts of Congress. DHS would, in effect, be penalizing visa applicants for using benefits they are allowed to take advantage of under existing law.

In addition, if someone previously applied for an application fee waiver available from DHS itself, they could then be denied a visa … by DHS.


(2) Likelihood of future use of government benefits. Although the following general criteria are defined by Congress, DHS plans to greatly expand the number of specific factors that immigration officers must take into account when determining whether or not a visa applicant is likely to become a “public charge” at any point in the future.

  • Age: Applicants could be denied if they are younger than the minimum age for full-time employment (18), older than the minimum “early retirement age” for social security purposes (61), or otherwise at an age that impacts their “ability to work.”
  • Health: DHS plans to scrutinize any medical condition and assess whether this condition could affect the applicant’s ability to work, potentially expanding the scope of the required medical examination.
  • Family size: Having more children or other dependents could increase the likelihood of a visa denial.
  • Skills DHS plans to determine whether an applicant has “adequate education and skills to either obtain or maintain employment” (if authorized to work), by looking at employment history, high school degree and higher education, “occupational skills, certifications, or licenses,” and proficiency in English or other languages.
  • Financial status: Above and beyond looking at an applicant’s income and assets (see below), DHS plans to assess credit history, credit score, and financial liabilities, plus whether the applicant has private health insurance or enough resources to cover “any reasonably foreseeable medical costs” that could interfere with work or study.

(3) Insufficient financial resources. Even if an applicant has never used government benefits in the past and meets all of the above criteria to demonstrate low likelihood of using benefits in the future, they could still be blocked by an entirely new requirement: personal financial resources. DHS plans to require a new form called the “Declaration of Self-Sufficiency” (Form I-944) to accompany most applications for green cards and temporary visas. This form would collect information intended to help immigration officers determine whether the applicant is a “public charge” under the new, more expansive criteria outlined above.

This new form is not to be confused with the “Affidavit of Support” (Form I-864), which Congress has mandated since 1996 to demonstrate the financial resources of the person sponsoring the applicant for a green card or other visa. Until now, immigration officers have typically given great deference to an Affidavit of Support showing that the sponsor has an income (or asset equivalent) of at least 125% of the Federal Poverty Guidelines, since this is a statutory threshold indicating that the visa applicant will have sufficient financial resources to avoid becoming dependent on government benefits.

Under the new policy, however, DHS plans to impose similar financial requirements on the applicant, not just the sponsor. It appears that at a minimum, applicants will have to demonstrate household income (or asset equivalent) of at least 125% of the Federal Poverty Guidelines. But in addition, DHS would set an entirely new and higher household income threshold at 250% of the poverty guidelines, establishing this much higher hurdle as a “heavily weighted positive factor.”

This could mean that, to safely avoid denial on public-charge grounds, an applicant would need to show annual household income of $41,150 (for a couple with no children) on up to $73,550 (for a family of five) or higher.


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Who would be affected by this policy change?

Green card applicants

The new public charge rule would apply to the vast majority of applicants for green cards (permanent residence). This likely includes green cards based on:

  • a family relationship to a U.S. citizen or lawful permanent resident, for which over 800,000 green cards were granted in 2016 (the most recent year for which DHS has published data)
  • sponsorship by a U.S. employer (140,000 green cards granted per year)

Temporary visa applicants

Moreover, DHS plans to apply the new public charge standards to a wide range of temporary (“nonimmigrant”) visas, whenever a visa holder in the United States needs to extend their visa or change to a new visa category. This could include the H-1B visa for skilled workers. Last year, DHS received over 233,000 applications for an extension or change in nonimmigrant status.

Exemptions

The public charge rule will not apply to visa applicants whom Congress has exempted from the public charge test, such as refugees, asylees, individuals who have experienced domestic violence, and other special categories.

Estimated impact

Given that the new public charge rule would create an entirely new income requirement for visa applicants (not just their sponsors) and would set this household income threshold as high as 250% of the Federal Poverty Guidelines, the following possible impacts have been estimated:


What about permanent residents seeking U.S. citizenship?

The new public charge rule could ultimately expand the ability of DHS to deport some immigrants who already have green cards (“lawful permanent residents”).

Congress states that a permanent resident can only be deported on public-charge grounds within the first five years of obtaining their green card — and only if they became a public charge based on circumstances that existed before they obtained their green card. (For example, a healthy person who obtains a green card, gets in an accident, and then needs government assistance would not be deportable on public-charge grounds.)

In practice, given the constraints set by Congress and court precedents, plus the fact that recent green card holders are typically ineligible for welfare, very few green card holders have been deported on public-charge grounds.

By expanding the definition of “public charge,” however, the administration could create new uncertainty for millions of immigrants.

Although the public charge proposal announced by DHS does not change the status quo for current green card holders, on Sept. 22, 2018 the agency sent reporters an official notice stating: “The Department of Justice intends to conduct a parallel rulemaking on public charge deportability, and will ensure that the standards are consistent to the extent appropriate.”

Although the details are likely to be complex, one can imagine a range of troubling scenarios, including some catch-22s.

For example, as part of the marriage-based green card process, the spouse of a U.S. citizen first obtains a green card, and then must wait three years to apply for U.S. citizenship (naturalization). DHS offers a fee waiver for low-income applicants. But if use of this fee waiver suddenly counts as a government benefit triggering a “public charge” finding, it’s possible that the permanent-resident spouse of a U.S. citizen could then be deported.

Without further details about the official Department of Justice plan, such scenarios are highly speculative.


What about visa applicants from abroad?

It’s important to note that the public charge rule described above would be a regulation issued by U.S. Citizenship and Immigration Services (USCIS), the part of DHS that processes green card and temporary visa applications filed within the United States.

Visa applicants abroad must file through their local embassy or consulate, in a process largely controlled by the U.S. Department of State.

Until recently, USCIS and the State Department followed the same relatively narrow definition of “public charge.”

In January 2018, however, the State Department changed its policy to expand the scenarios when a consular officer may deny a visa application on public-charge grounds. This change was made through revisions to the Foreign Affairs Manual, which guides decision making by consular officers. Although that means the changes were effective immediately, they were also less specific than what DHS is contemplating through its more slowly moving regulatory process.

For a short summary of the State Department action and its anecdotal impact, please see this article.


What happens next?

It’s very important to understand that, despite the headlines you may read, the DHS public charge rule has not gone into effect. The traditional status-quo policy will remain in effect until DHS issues a final version of the new public charge rule, which will certainly take many months and possibly well over a year.

This is the procedure that federal agencies like DHS must follow when issuing a new regulation:

(1) Proposed rule: DHS publishes a “proposed” or “draft” rule in the Federal Register (officially known as a “Notice of Proposed Rulemaking”). This document sets forth the specific changes that DHS wants to make to the Code of Federal Regulations, along with a lengthy legal and economic justification. Read the proposed rule here.

(2) Public comment period: For the next 60 days, the proposed rule is open for public comments. This means that anyone is allowed to send DHS their own feedback about the public charge rule, including arguments for keeping the status quo or modifying the regulatory text.

(3) Internal deliberations: For the next several months, DHS reads through all of the public comments, prepares a response to each substantive concern, and possibly makes changes to its regulatory plan and economic impact analysis. This process typically takes a long time — six months would be very fast in federal agency terms, and well over a year is not uncommon.

(4) Final rule: DHS publishes a “final” rule in the Federal Register. This document sets forth the final changes that DHS will make to the Code of Federal Regulations. DHS may decide to change course from its initial proposed rule, or to adopt the exact same language as before. Either way, DHS must provide a detailed justification for why it chose to either follow or ignore the public comments it received. The final rule will have an “Effective Date,” typically occurring 30 to 60 days later, at which point the rule becomes law — assuming that it is not blocked by a judge in a federal lawsuit.


What does this mean for me?

On the one hand, the new DHS public charge policy probably won’t be enacted until mid-2019 at the very earliest. Until then, the longstanding narrow definition of “public charge” won’t change.

Even if the new rule is finally enacted, expanding the number of government benefits that trigger a denial on public-charge grounds, it probably won’t penalize applicants for their use of such benefits prior to the Effective Date of the rule.

It’s unclear, however, whether immigration officers might start applying some of the tighter standards for denying applications right away, beginning with the new rule’s Effective Date.

Here’s the bottom line: If you are contemplating a green card application or a naturalization application, you’re almost certainly better off if you get it filed right away, as far in advance of these new changes as possible.

Boundless is constantly monitoring changes to the U.S. immigration system to help keep you informed. Stay up to date by following Boundless on Twitter or Facebook, so you can be alerted as soon as more official details come to light.

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(Note: An earlier version of this post was published on September 10, 2018, based on prior DHS drafts that were leaked to the press in February and March of 2018.)


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