What is the “public charge” rule?
The concept of a “public charge” has been part of immigration law in the U.S. since at least 1882, but didn’t come to be formally defined until May 1999, when the former Immigration and Naturalization Service (INS), the agency which predated the Department of Homeland Security (DHS), released what is commonly referred to as the “1999 Interim Field Guidance.”
This guidance defined a “public charge” as someone who is “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.”
This is the current standard used by both DHS and the Department of State (DOS).
Where does the public charge rule stand now?
During the Trump administration, the “Public Charge rule” was dramatically expanded to reduce the number of people who were eligible for green cards and other visas, by redefining what made them dependent on government benefits — or “likely” to be in the future.
There were two versions of the regulation released in 2019: the DHS public charge rule, which applied to green card applicants within the United States, and the DOS public charge rule, which applied to those outside the United States. Neither version of the 2019 rule is still in effect. The 2019 DHS rule was halted by the Biden administration on March 9, 2021, while the analogous DOS policy was paused indefinitely on July 29, 2020 due to a court order.
The Biden administration withdrew the 2019 rule in 2021, and proposed its own version of the rule in February 2022, which it finalized on September 9, 2022. The 2022 rule mirrors the 1999 Interim Field Guidance by defining a public charge as someone who is “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 includes:
- 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
What does this mean for me?
Applicants are not required to submit Form I-944 or DS-5540 when applying for permanent residency or a visa. However, a public charge portion and several additional questions were added to Form I-485 (Application for Adjustment of Status). Any green card applicants applying for a green card from within the United States on or after December 23, 2022 must use the new version of the form.
Public charge rule history
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 “any person unable to take care of himself or herself without becoming a public charge.” Congress updated the law in 1891, preventing the entry of anyone who “is likely at any time to become a public charge.” Neither law, however, defined what “public charge” meant.
However, 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.
During the Trump administration, DHS announced a new proposed public charge regulation on September 22, 2018 and published a final regulation on August 14, 2019. This 2019 public charge rule went into effect on Feb. 24, 2020. It was met swiftly with multiple challenges from states attorneys general, as well as immigrant and civil rights advocates.
The 2019 DHS rule was halted by the Biden administration on March 9, 2021, while the analogous DOS policy was paused indefinitely on July 29, 2020 due to a court order. On April 9, 2021, the 9th Circuit Court of Appeals denied Republican states’ efforts to resurrect the 2019 rule. Led by Arizona, the Attorneys General of several states sought to revive the appeals aiming to keep the 2019 public charge rule in place after the 7th Circuit vacated the rule on March 9th. The states appealed to the Supreme Court, which threw out the case on June 15, 2022.
In the meantime, the Biden administration released a proposed public charge rule for DHS on February 16, 2022 which largely codified the 1999 Interim Field Guidance, narrowing the extremely broad definition of “public charge” found in the 2019 rule to a more simplified and fair standard. The final rule was unveiled on September 8, 2022, and is scheduled to take effect on December 23, 2022.
DOS also requested comments from the public on the 2019 DOS public charge rule, indicating that it intends to update and formalize the public charge guidance used by DOS to match that used by DHS.
What changed under the 2019 DHS public charge rule?
In 2019, DHS dramatically expanded the definition of “public charge” so that green card and other visa applicants would 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 created 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 policy expanded 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 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 counted as two months.
(DHS did 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 did not have the authority to make anybody ineligible for these benefits, which are administered by other federal agencies under various acts of Congress. DHS was, in effect, be penalizing visa applicants for using benefits they wwere 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 sought to penalize. Unfortunately, this rule created a “chilling effect” that scared many people into dis-enrolling from public benefits even though they didn’t need to.
(2) Likelihood of future use of government benefits. Although the following general criteria are defined by Congress, DHS greatly expanded the number of specific factors that immigration officers had to take into account when determining whether or not a visa applicant was likely to become a “public charge” at any point in the future.
- Age: Applicants could be denied if they were 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 impacted their “ability to work.”
- Health: DHS scrutinized any medical condition and assessed whether this condition could affect the applicant’s ability to work.
- Family size: Having more children or other dependents could increase the likelihood of a visa denial.
- Skills: DHS determined whether an applicant had “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 assessed credit history, credit score, and financial liabilities, plus whether the applicant had 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 had never used government benefits in the past and met 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 required a new form called the “Declaration of Self-Sufficiency” (Form I-944) to accompany most applications for green cards. This form collected information intended to help immigration officers determine whether the applicant was 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 imposed similar financial requirements on the applicant, not just the sponsor. At a minimum, applicants had to demonstrate household income (or asset equivalent) of at least 125% of the Federal Poverty Guidelines. But in addition, DHS 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.”
Who was affected by this policy change?
Green card applicants
The public charge rule applied to the vast majority of applicants for green cards (permanent residence). This included green cards based on:
- a family relationship to a U.S. citizen or lawful permanent resident
- sponsorship by a U.S. employer
Temporary visa applicants
Moreover, DHS applied some of the new public charge standards to a wide range of temporary (“nonimmigrant”) visas, whenever a visa holder in the United States needed to extend their visa or change to a new visa category. This included the H-1B visa for skilled workers.
Such applicants were not subject to Form I-944 or future-looking tests described above, but still had to demonstrate that they had 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 sought to penalize.
The public charge rule did not apply to visa applicants whom Congress has exempted from the public charge test, such as refugees, asylees, individuals who had experienced domestic violence, and other special categories.
What about permanent residents seeking U.S. citizenship?
Changes to the definition of “public charge” could have ultimately expanded the ability of DHS to deport some immigrants who already had 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 have created new uncertainty for millions of immigrants.
Although the public charge did 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.”
One could 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.
The Department of Justice plan was never finalized.
What about visa applicants from abroad?
It’s important to note that the DHS public charge rule described above was 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.
At first, 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.
What about sponsors of green card applicants?
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 caused 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 were unlikely to be harmed by this order.
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(Note: Earlier versions of this post were published on Sept. 10, 2018, Sept. 23, 2018, and Aug. 12, 2019, based on the DHS proposed rule as well as prior DHS drafts that were leaked to the press in Feb. and March of 2018. The post was updated on April 22, 2021 in light of the Ninth Circuit’s ruling, and again on September 8, 2022, to reflect the government’s release of the finalized public charge rule.)