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Who does the public charge rule apply to?

November 2, 2019

The “public charge ground of inadmissibility” affects people applying for admission to the U.S. or for lawful permanent resident (LPR) status. The public charge test does not apply to humanitarian immigrants such as refugees; asylees; survivors of domestic violence, trafficking and other serious crimes; special immigrant juveniles; and certain individuals paroled into the U.S. Lawful permanent residents are not subject to a public charge determination when they apply for citizenship.

 

Who makes public charge decisions?

Decisions about applications for admission or LPR status ​outside the U.S​. (at embassies or consular offices abroad) are guided by the Department of State (DOS) and are different from decisions on applications for LPR status ​inside the U.S​., which are guided by regulations and policy from the U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS).

 

 

 

Current Public Charge Policy for Immigrants with ​Applications Processed Inside the U.S.

 

Topline: DHS’ Final Rule has been blocked by the courts. The legal battle will continue but, for now, the longstanding public charge policy described in the 1999 Field Guidance remains in place.

 

Background​: On August 14, 2019, the Trump administration published a final rule that changes the definition of “public charge” and adds specific details about how immigration officials will take into account the applicant’s income, health, age, education and family status. States, counties and non-profit organizations have filed a total of nine​ ​legal challenges to the rule​. As of October 14, five federal courts have issued preliminary injunctions that temporarily block implementation of the rule – including nationwide injunctions from federal judges in New York, Washington and Maryland.

 

Preliminary injunctions are court orders that stop something from happening while a case is proceeding. As a result of these cases, the DHS public charge rules are currently prevented from going into effect anywhere in the U.S. It is likely that the government will seek to appeal the judges’ decisions. But for now, the rule is on hold, and the longstanding policy will remain in place as long as any one of the nationwide injunctions is in effect.

 

Policy in Effect Today:​ Under policy guidance from 1999 which remains in effect today, public charge is defined as an immigrant who is “likely to become primarily dependent on the government for subsistence.” Several factors are considered in determining whether an individual is likely to become a public charge. These include an individual’s age, health, income, family size, education and skills. The contract, or “affidavit of support” that a sponsor signs may also be considered in this test. However, no single factor will determine whether an individual is likely to become a public charge in the future. The use of health, nutrition and housing programs can NOT be considered in this public charge determination. Under the current policy, the only benefits considered in determining whether a person is likely to become a “public charge” are:

  • Cash assistance for income maintenance, which includes state and local cash assistance programs as well as federal programs such as Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF).

  • Government funded long-term care (nursing home or other institutionalized care).

 

The use of health, nutrition and housing programs are ​NOT​ considered in this public charge determination. ​Although the government can look at whether the individual used cash assistance or long term care, it can also weigh any positive factors in the public charge test. The fact that someone just graduated from school or has a job offer can balance past use of benefits if the person’s situation has now changed.

 

DHS has clarified​ that the effective date of the final rule is postponed until there is a final resolution in the cases. The federal district court in New York also made it clear that the rule will not take effect until the injunctions are overturned. This means that future changes should not be retroactive.

 

The information provided is for general informational purposes only. 

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