IMPORTANT UPDATE: The U.S. Department of State’s new public charge policy took effect on Feb. 24, 2020, and applies to people applying for green cards and visas from outside the United States, through a process called “Consular Processing.” (For those applying from within the United States — through “Adjustment of Status” — see this Boundless guide.)
On Feb. 21, the Office of Management and Budget approved an emergency request from the State Department to enforce its new public charge policy. On the same day, however, a hearing was scheduled for Feb. 28, when a federal judge decides whether to temporarily stop this new policy from being enforced.
In 2018, the Trump administration began overhauling the “public charge rule,” a test used to determine whether would-be green card and visa holders are likely in the future to require support from the U.S. government. The reform — arguably the Trump administration’s most far-reaching legal immigration policy change to date — will make it harder for many non-U.S. citizens to secure green cards and visas. But the impact is likely to vary, depending on whether a green card or visa applicant files from within the United States or from abroad via their local U.S. consulate or embassy.
This guide will focus on how the public charge policy will affect you if you’re applying for a green card or visa from outside the United States. If you’re applying from within the United States, check out this other guide.
When you apply for a green card from outside the United States, your application is evaluated by U.S. Department of State (DOS) consular officers. In January 2018, DOS quietly issued new public charge guidelines for those consular officers to follow, requiring closer scrutiny of applicants’ financial well-being — among other new factors — to determine whether they might have to rely on public benefits.
Over 13,000 people have already been refused green cards under the new rules, so it’s important to understand how the State Department public charge guidelines affect you.
This guide will cover:
- What is a “public charge”?
- How did the State Department make “public charge” decisions before January 2018?
- How does the State Department make “public charge” decisions now?
- Who is (and isn’t) affected by this change?
- What does this change mean for me?
Under U.S. immigration law, nobody is eligible for a green card or a temporary visa if they are “likely to become a public charge.”
In 1999, the Immigration and Naturalization Service (INS), the precursor to U.S. Citizenship and Immigration Services (USCIS), defined “public charge” as someone who is “primarily dependent on the government for subsistence” by receiving either (a) public cash assistance or (b) government-funded long-term care.
Those two categories of public benefits have included:
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF), commonly known as “welfare”
- State and local cash assistance, also known as “General Assistance”
- Medicaid or other programs supporting long-term institutionalized care, such as in a nursing home or mental health institution
The law also says that government officers should take into account five other factors in determining whether someone is likely to become a public charge:
- Household size
- Assets, income, and financial status
- Education and skills
Consular officers, who are responsible for evaluating green card and visa applications filed abroad, must follow the public charge guidelines in the State Department’s Foreign Affairs Manual (FAM).
Until January 2018, these guidelines said that an Affidavit of Support alone “should normally be considered sufficient” to satisfy an officer that the applicant was not likely to become a public charge. An Affidavit of Support (officially known as “Form I-864”) is a commitment by a U.S. sponsor to make sure the applicant stays above 125% of the Federal Poverty Guidelines.
In practice, it was rare for consular officers to deny a visa or green card applicant based on a public charge determination.
The State Department’s new “public charge” guidelines were issued on January 3, 2018, with little public notice, and went into effect immediately.
According to the revised FAM instructions, applicants now face additional scrutiny in the following areas:
1) Sponsor’s Affidavit of Support
Under the old rules, a sponsoring relative’s Affidavit of Support pledging to provide financially for an applicant was enough to cancel out most potential public charge problems. That’s no longer the case: An Affidavit of Support is now considered just a “positive factor” but doesn’t automatically cancel out other factors that might lead to a public charge determination.
Affidavits of Support themselves are also subject to increased scrutiny. Consular officers are allowed to consider “what-if” situations, such as whether a sponsor will actually support the applicant, and to request additional evidence if they have doubts. Past use of public benefits by sponsors or members of their household could also be weighed against applicants.
Under the new rule, all green card applicants will need to complete and submit Form DS-5540 (officially called the “Public Charge Questionnaire”). The new form asks for information about your health, financial status, and various other factors, and it is designed to help consular officers assess whether or not you are likely to become a public charge.
3) Use of noncash benefits
The old guidelines focused on applicants’ past use of cash benefits. But under the new system, consular officers can also consider applicants’ use of noncash benefits, such as Medicaid, the Children’s Health Insurance Program (CHIP), food stamps, and housing benefits.
Past or current use of public benefits by the applicant’s sponsoring relative, as well as by an applicant’s family members, including their U.S.-citizen children (in theory), can also be weighed against them by consular officers as part of the evaluation process. Use of public benefits in the past 3 years by the household members of the sponsoring relative can be weighed against applicants, too.
Applicants’ health conditions are now a heavily weighted factor for the purposes of making a public charge determination. If you have serious health problems, you could be expected to show proof that you have medical insurance or the ability to pay for your medical expenses while you’re in the United States.
Consular officers must now give much more weight to an applicant’s job history and employment prospects when making a public charge determination. Applicants with gaps in their job history could face increased questioning, and officers may also demand evidence regarding their future employment plans in the United States. That could include additional questions about their education and job skills or questions regarding potential job offers.
6) Past visa denials
Previous visa denials on public charge grounds are also given much more weight by consular officers. That means it’s much harder for applicants to obtain visas if they’ve previously been denied a visa on public charge grounds — and makes it important to try to ensure a visa application is completed accurately and smoothly the first time around.
The State Department has received many complaints that consular officers have not been applying the new FAM guidance correctly or have been asserting additional requirements that are not based on current immigration law. For example, there have been reports that some consular officers have been requiring joint financial sponsors to also be family members. This is not a requirement under current immigration law or FAM guidance.
Additionally, when the joint sponsor is not a relative, there have been instances where consular officers ask for additional information ensuring that the joint sponsor understands the legal responsibilities of submitting an Affidavit of Support. Other applicants have been required to submit evidence describing their relationship with their joint sponsor.
All these additional requests to satisfy the public charge test create additional delays for green card and visa applications, and in some cases result in outright denials.
The State Department’s public charge guidelines apply only to those filing outside the United States, at U.S. consulates and embassies.
The public charge test does not apply to humanitarian visa applicants — for example, refugees, asylees, and victims of domestic violence — and certain applicants who are considered “special immigrants,” such as Iraqi citizens who worked for or represented the U.S. government in Iraq.
What about applicants already in the United States?
The State Department only has jurisdiction over people seeking to enter the United States. It’s the Department of Homeland Security (DHS) that handles visa and green card applications from people already in the United States.
Read more about the impact of the new DHS public charge rule on U.S.-based applicants.
What does this change mean for me?
The State Department’s public charge guidelines are making it harder to secure a green card or other visa when filing from outside the United States. If you’re filing immigration paperwork from abroad, be prepared for significant scrutiny of both your past and present financial situation. You will need to include an additional form with your application, Form DS-5440 (officially called the “Public Charge Questionnaire”).
Bear in mind that a sponsoring relative’s Affidavit of Support is no longer enough to prevent a visa denial based on the public charge test. Consular officers will weigh your sponsoring relative’s ability and willingness to support you, and if there are other negative factors — such as being a minor, elderly, retired, unemployed, or having a disability — then you may expect additional questioning.
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.
It’s important to work closely with an experienced immigration attorney before your green card interview. If you need legal advice on these issues, the American Immigration Lawyers Association (AILA) can help find a licensed immigration attorney near you. Alternatively, the U.S. Department of Justice accredits certain non-profit organizations that provide low-cost or free immigration legal services.