IMPORTANT UPDATE: The U.S. Department of Homeland Security’s public charge rule is currently blocked from taking effect on Oct. 15. This means that people applying for green cards and visas from within the United States — through a process known as “Adjustment of Status” — are not currently affected by the new rule.
The U.S. Department of State’s public charge policy, which was recently aligned with the DHS rule, is also temporarily delayed from going into force on its scheduled effective date, also Oct. 15. This means that people applying for green cards and visas from outside the United States — through a process called “Consular Processing” — are not currently affected by the policy changes.
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. DHS published a final regulation on August 14, 2019, scheduled to take effect 60 days later on October 15, 2019.
What does the proposed public charge rule say, and how many people could it affect?
This guide will cover:
- What is the “Public Charge Rule”?
- What would change under the new “public charge rule” proposal?
- Who would be affected by this policy change?
- What about permanent residents seeking U.S. citizenship?
- What about visa applicants from abroad?
- What about green card sponsors?
- What happens next?
- What does this mean for me?
The public charge concept was first established by Congress in 1882 in order to allow the U.S. government to deny a U.S. visa 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 $21,137 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.
DHS plans to dramatically expand the definition of “public charge,” so that green card and other visa applicants could be denied not for being “primarily dependent on the government for subsistence” (the current standard) but instead for being “more likely than not” to use certain public benefits at any point in the future.
Under the final regulation, DHS would create the following new criteria for denying a green card application from within the United States:
(1) Prior use of certain government benefits. Instead of limiting the definition of off-limits government benefits to welfare payments and subsidized long-term institutionalization, the new policy would expand the definition to include a wider range of common government benefits:
- All of the status quo benefits list above (SSI, TANF, general assistance, and long-term institutional care)
- Supplemental Nutrition Assistance Program (SNAP), commonly knowns as “Food Stamps”
- Section 8 housing and rental assistance
- Federal housing subsidies
- Nonemergency Medicaid benefits (with exceptions for children under 21, people with disabilities, pregnant women, and mothers within 60 days after giving birth)
A “public charge” denial would be triggered if someone has received one or more of the above public benefits, for more than 12 months in aggregate within any 36-month period. Receipt of two benefits in one month counts as two months.
(DHS will not penalize applicants for use of these benefits by a spouse or child, in a departure from previously reported drafts.)
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.
And it’s also important to understand that the great majority of people applying for green cards are not even eligible for the very benefits that the DHS public charge rule seeks to penalize. Unfortunately, this rule has created a “chilling effect” that scares many people into disenrolling from public benefits even though they don’t need to.
(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. 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.
Green card applicants
The new public charge rule would apply to the vast majority of applicants for green cards (permanent residence). This 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 some of 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 includes the H-1B visa for skilled workers. Last year, DHS received over 233,000 applications for an extension or change in nonimmigrant status.
It appears that such applicants will not be subject to the Form I-944 or future-looking tests described above, but still must demonstrate that they have not received the above-mentioned public benefits “for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”
Again, it’s important to understand that the great majority of people applying for an extension or change of temporary (“nonimmigrant”) visas are not even eligible for the very benefits that the DHS public charge rule seeks to penalize.
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.
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:
- DHS could begin denying up to nearly half of all marriage green card applicants, each year forcing nearly 200,000 couples to either leave the United States together or live apart indefinitely. (Source: Boundless Immigration)
- Some 56% of all family-based green card applicants could be denied under the public charge rule’s unprecedented income requirement — more than the 47% at risk based on prior use of government benefits. (Source: Migration Policy Institute)
- Moreover, this new hurdle would have , blocking 71% of applicants from Mexico and Central America, 69% from Africa, and 52% from Asia — but only 36% from Europe, Canada, and Oceania. (Source: Migration Policy Institute)
Changes to the definition of “public charge” 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 (DOJ) intends to conduct a parallel rulemaking on public charge deportability, and will ensure that the standards are consistent to the extent appropriate.” More recently, Reuters reported further details about this DOJ plan.
Although the final 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, however, such scenarios are highly speculative.
It’s important to note that the DHS public charge rule described above is 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 detailed guide to the State Department action and its impact, please see this article.
Separate from the actions described above, in May 2019, the White House issued a presidential memorandum directing a dozen Cabinet secretaries to step up punitive actions against U.S. citizens and permanent residents if their sponsored immigrant family members receive public benefits such as food stamps or Medicaid.
For more than two decades, U.S. law has required that in order to sponsor a family member for a green card, a U.S. citizen or permanent resident must sign an “affidavit of support,” which is essentially a contract with the federal government promising to maintain the sponsored immigrant’s household income at no less than 125% of the federal poverty guidelines. (It’s also common for other family members or friends to execute an affidavit of support as “joint sponsors” if necessary.) If the immigrant ends up using certain public benefits before becoming a U.S. citizen, then the government has the right to recover the cash value of those benefits from the sponsor. Until now, however, there have been few such recovery actions by the government.
By directing several federal agencies to vigorously pursue any possible recovery action, the White House order could cause concern among family-based green card sponsors. It’s important to remember, however, that relatively few green card holders are eligible for public benefits in the first place, and therefore most green card sponsors are unlikely to be harmed by this order.
Boundless will continue to update this post as more details emerge about the implementation of this order.
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 the “effective date” occurs—either on the scheduled date of Oct. 15, 2019 or later if the courts block the rule.
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. Read the final rule here. The final rule will have an “Effective Date,” occurring 60 days later, at which point the rule becomes law — assuming that it is not blocked by a judge in a federal lawsuit.
Even if the new rule is finally enacted, expanding the number of government benefits that trigger a denial on public-charge grounds, it won’t penalize applicants for their use of such benefits prior to the Effective Date of the rule.
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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- Official USCIS page on the DHS public charge rule.
- Forbes interview with Boundless co-founder Doug Rand on how this policy would affect both families and employers.
- Boundless analysis, Houston Chronicle op-ed, and NBC News story on how this policy could separate nearly 200,000 married couples each year.
- Austin American-Statesman op-ed and stories in Politico, Wired, and the Wall Street Journal on how this policy could harm U.S. businesses.
- Letter from over 120 business leaders opposing the public charge rule as devastating to business growth, economic vitality, and U.S. competitiveness.
- Boundless report demonstrating that the public charge rule is unlawful and would cost up to $13 billion per year.
(Note: Earlier versions of this post were published on Sept. 10, 2018, and Sept. 23, 2018, based on the DHS proposed rule as well as prior DHS drafts that were leaked to the press in Feb. and March of 2018.)