“Public charge” is a ground of inadmissibility that could bar an individual’s admission to the United States on a visa or adjustment of status to lawful permanent resident (ability to get a green card).
On August 14, 2019, the Department of Homeland Security (DHS) published a new rule related to public charge in the Federal Register, which was scheduled to take effect on October 15, 2019.
However, as of October 11, 2019 this rule has been enjoined by multiple courts. The injunctions stop the rule from taking effect. Thus, USCIS cannot implement the new rule until a court rules otherwise, and cases filed with USCIS will follow longstanding policies around public charge.
The Department of State (DOS) is the agency that controls visa decisions at U.S. consulates and embassies abroad. DOS published a new rule related to public charge on Friday, October 11, which was set to take effect at the consulates on October 15, 2019. It is unclear what public charge standard will apply to immigration cases where the interview is held outside the United States, because the new DOS rule was related to the DHS rule that the courts just blocked. An official at the Department of State indicated that, to date, they have not yet implemented the new DOS rule. Check back for updates on these new rules.
Here are a few important points regarding public charge:
- Public charge does not apply to all immigrants. This law mainly impacts those seeking permanent resident status through family member petitions.
- In immigration law, public charge is a ground of “inadmissibility.” This law says that those that are likely to become dependent on the government in the future as a “public charge” are inadmissible. Grounds of inadmissibility only apply to those seeking entry at our borders or those seeking to get a green card in the United States through an adjustment of status.
- Public charge currently refers to someone who is likely to become primarily dependent on cash aid from the government or long-term institutionalized care.
- Many immigrant categories are exempt from the public charge ground of inadmissibility, even if they might be applying for status or a green card. U visa holders, T visa holders, asylees, refugees, and many more categories are exempt.
- Public charge laws do not apply in the naturalization process, when a person applies to become a U.S. citizen, or when a permanent resident applies to renew their green card.
What is the current law?
- Currently, immigration officers decide public charge by evaluating whether an applicant for a green card or an individual seeking to enter the United States on certain visas is likely to become primarily dependent on the government for support. Primary dependence refers to reliance on cash-aid for income support or long-term care paid for by the government.
- To decide whether an individual is a public charge, immigration officers rely on multiple factors specified in the INA. They must also rely on the “affidavit of support,” which is a contract signed by the immigrant’s sponsor, indicating that the sponsor will financially support the immigrant. This affidavit of support offers strong evidence that the immigrant will not become primarily dependent on the government.
- Under existing policy, immigration officers also consider whether an immigrant applying for a green card or admission to the United States has used cash aid (such as TANF, also known as “welfare,” or SSI) or long-term institutionalized care in the past. Immigrants who have used this form of assistance will have to show that it is not likely they will need these resources for support in the future.
- Use of publicly-funded health care, nutrition, and housing programs are not currently considered negative factors for purposes of public charge.
- The new rule published on August 14, 2019 intended to change which benefits were included and how officers made decisions about public charge. This rule has not gone into effect. Cases filed now will be decided under existing policies described here.
- Individuals seeking to enter the United States apply at consulates or embassies abroad. At offices outside the United States, the officers follow Department of State rules and guidance, including the Foreign Affairs Manual (FAM). DOS also issued a new rule, but they have not yet implemented it. Under FAM guidance, officers investigate further into the sponsor’s ability to uphold the affidavit of support. To learn more about this process see our Consular Processing Practice Alert on Public Charge and Affidavit of Support Issues.
- To learn more about the public charge ground of inadmissibility, please see our overview below.