Supreme Court temporarily clears “Public Charge” regulation
Update (01/31/20): The U.S. Supreme Court allowed the DHS public charge rule to take effect nationwide while lawsuits continue (except for Illinois, where the rule remains blocked by a statewide injunction). Per USCIS, the final rule will only apply to applications submitted on or after February 24, 2020. Medicaid, SNAP (“Food Stamps”), HUD public housing, and “Section 8” housing benefits received before February 24, 2020 will not be considered in the public charge determination.
Families should continue to use the services for which you are eligible without fear. See how “public charge” will impact you based on your immigration status, and what you should do.
There is already a great deal of confusion and misinformation about the new public charge rule. This page and tools attempt to make it easier for families to learn the facts and make decisions.
Above all, your family should receive what they need to be healthy, well-nourished and sheltered.
In addition to the information below, we provide a few downloadable resources for you:
What is “public charge”?
Public charge is a technical legal term used in immigration law. It is part of a screening process used by U.S. immigration officials with non-citizens who are applying for lawful permanent resident (LPR) status, commonly also called getting a green card. If someone is considered to be a public charge or likely to become a public charge they won’t be able to get a green card.
The new rule will weigh a range of factors in deciding whether a person is likely to use certain public benefits in the future, and would make it much more difficult for low and moderate-income immigrants to get a green card, extend or change their temporary status in the US.
Immigration officials must consider all of an immigrant’s circumstances. The public charge statute — which cannot be changed by regulations — requires immigration officials to look at all factors that relate to noncitizens’ ability to support themselves, including their age, health, income, assets, resources, education/skills, family members they support, and family who will support them. They may also consider whether a sponsor has signed an affidavit of support (a contract) promising to support the noncitizen. Since the test looks at the person’s overall circumstances prospectively, no one factor is definitive. Any negative factor, such as not having a job, can be overcome by positive factors, such as having completed training for a new profession or having college-educated children who will help support the family.
The new test would weigh each of the following negatively in public charge decisions: earning less than 125% of the federal poverty level (FPL) or $31,375 for a family of four – and by weighing as “heavily positive” a household income of 250 percent of the Federal Poverty Level. To reach that threshold, a family of 4 would need to earn nearly $63,000 annually. The latter is considered a heavily weighted “positive” factor.
Other “negative” factors include being a child or a senior, having certain health conditions, limited English ability, less than a high school education, a poor credit history, and other factors.
Because the change in rules is being covered a lot in the news, some non-citizen clients may fear applying for or continuing to receive government benefits.
The public charge rules have already changed for people seeking a visa to enter the U.S. from the U.S. Consulate in their home country.
Final Public Charge Definition
A person who “receives one or more public benefit… 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).”
When does Public Charge come up?
A public charge assessment is made when a person:
- Applies to enter the U.S.
- Applies to adjust status to become a Lawful Permanent Resident (LPR) – obtaining a green card
- A green card holder leaves the U.S. for more than 180 consecutive days (6 months) and reenters
Totality of Circumstances (TOC)
New weighted factors of the totality of circumstances (TOC) test designed to make it harder for low and moderate income people to pass.
- Income and Financial Status- Under 125% FPL (negative); Over 250% FPL (heavy positive)
- Age – Under 18 or over 61 (negative)
- Education and Skills
- Medical condition likely to require extensive treatment, institutionalization or interfere with ability to care for self, attend school or work
- Family Status
- Affidavit of Support
Does public charge affect all non-citizens?
No. USCIS does not screen all noncitizens who are applying for, or want to apply for, permanent resident status, to see whether they are or may become public charges.
Noncitizens in certain exempt immigration classifications are NOT subject to a public charge screening, nor will they be even if the proposed rule changes are adopted.
Who is exempt from this new rule?
Exempt immigrants – those not impacted by the new public charge rule – include: refugees; asylees; survivors of trafficking, domestic violence, or other serious crimes (T or U visa applicants/holders); VAWA self-petitioners; special immigrant juveniles; and certain people paroled into the U.S. And lawful permanent residents (green card–holders) are not subject to the public charge test when they apply for U.S. citizenship. These laws will remain in place.
Do all public benefits count for public charge?
Not all public benefits put a non-citizen at risk of being classified as a public charge.
The NEW rule expands the types of benefits that could be considered in a “public charge” determination to include key programs that provide no income support but merely help participants address their basic needs.
These programs include:
- Medicaid (with limited exceptions including Medicaid coverage of an “emergency medical condition,” and certain disability services related to education);
- Supplemental Nutrition Assistance Program (SNAP)(formerly called food stamps);
- Federal Public Housing, Section 8 housing vouchers and Section 8 Project Based rental assistance.
In addition to the already existing “public charge” benefits:
- Cash Assistance
- Long-term Institutional Care
(Note: cash assistance and long-term institutional care benefits are being considered as public charge – currently.)
Newly Finalized Rule: Benefits
Which benefits will be EXCLUDED from the new rule?
The benefits listed below are not part of the public charge rule and you may access them – if you are eligible .
- Disaster relief
- Emergency medical assistance
- Entirely state, local or tribal programs (other than cash assistance or institutionalized long-term care)
- Benefits received by immigrant’s family members
- Women Infants and Children (WIC)
- School Breakfast and Lunch
- Energy Assistance (LIHEAP)
- Transportation vouchers and non-cash transportation services
- Non-cash TANF benefits
- Federal Earned Income Tax Credit and Child Tax Credit
- Student Loans
- Employment and Job Training Programs
- Legal Assistance
Is my personal information safe?
Federal and state laws protect the privacy of people who apply for or receive health care coverage, nutrition, economic support, or other public benefits. Applications for public programs should not request information about the immigration status of non-applicants in the household. Benefit agencies may share information with other government agencies only for purposes of administering their programs, with limited exceptions. You can provide only the information necessary and should not misrepresent anything when completing public benefit applications or dealing with any government agency.
What are the other exemptions I should be aware of?
- DHS will not consider benefits received by an applicant’s family members, or any programs not specifically listed in the rule.
- DHS will not consider programs funded entirely by states, localities or tribes, with exceptions for cash assistance and long-term care programs.
- The regulation also proposes to exclude benefits received by active duty service members, military reservists and their spouses and children.
When will the rule take effect?
The rule will take effect 60 days or as of February 24, 2020. However, the rule will not be retroactive. This means that benefits — other than cash or long-term care at government expense — that are used before the rule is final and effective will not be considered in the public charge determination.
Will I be deported?
The new rule does not interpret or expand the public charge ground of deportability. Under current law, a person who has become a public charge can be deported only in extremely rare circumstances. The Department of Justice may propose a separate rule that addresses this ground.
If your family plans to apply for a green card or visa outside of the United States, you should talk with an expert for advice before making any decisions. For free or low-cost options near you, visit www.immigrationadvocates.org/nonprofit/legaldirectory. Help is available in many languages.
Things to Keep in Mind
- The rule is not in effect yet.
- Applies only to applications submitted on or after February 24, 2020.
- Newly named benefits used prior to that date will not be considered
- Not everyone is subject to the rule.
- Many immigrants are exempt from the public charge inadmissibility ground.
- Benefits used by family members will not be counted.
- Positive factors can be weighed against negative factors in this forward-looking test.
- Every situation is different.
- You can consult with an immigration attorney if you have questions about your own case.
Thank you to Protecting Immigrant Families (PIF) for their ongoing analysis and support on this important “interior” immigration topic.
The content of this page was curated & produced by Hispanic Unity of Florida, Inc.
Posted on August 14, 2019 & Updated on February 15, 2020