What is Public Charge?

Since 1999, agency guidance has defined it to mean a person who is or is likely to become primarily dependent on either of two types of public benefits: (1) public cash assistance for income maintenance, or (2) government-funded institutionalization for long-term care. In addition, in January 2018, DOS revised the Foreign Affairs Manual (FAM) to instruct consular officers to consider a wider range of public benefits when determining whether visa applicants who have received or are currently receiving benefits are inadmissible on public charge grounds.

 

Who is subject to a public charge determination of inadmissibility? Who makes the determination?

Most aliens applying for an immigrant visa, for admission at a port of entry, or for adjustment to LPR status are subject to a determination of inadmissibility based on public charge grounds.

 

A public charge determination of inadmissibility typically is made by a USCIS immigration official (when an alien residing in the United States applies for adjustment to LPR status) or by a DOS consular officer (when an alien applies for an immigrant visa abroad to seek admission to the United States as an LPR)

 

What is considered “public charge” under the new rule?

The public benefits proposed to be designated in the new rule are federal, state, local, or tribal

cash assistance for income maintenance, Temporary Assistance for Needy Families (TANF),

Supplemental Security Income (SSI), Medicaid (with limited exceptions for Medicaid benefits

paid for an “emergency medical condition,” and for certain disability services related to

education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance

Program (SNAP, or food stamps), institutionalization for long-term care at government

expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental

Assistance, and Public Housing. The first three benefits listed above are cash benefits that are

covered under current policy.

 

Who is exempt from public charge determinations of inadmissibility?

These categories include the following:

 

• Applicants for refugee status or asylum, as well as refugees and asylees seeking adjustment to LPR status;

 

• Aliens seeking admission pursuant to the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988;

 

• Cuban and Haitian entrants seeking admission or adjustment of status as described in the Immigration Reform and Control Act of 1986;

 

• Nicaraguans and other Central Americans adjusting status as described in the Nicaraguan Adjustment and Central American Relief Act of 1997;

 

• Victims of certain crimes assisting law enforcement (U-visa applicants);

 

• Victims of human trafficking assisting law enforcement (T-visa applicants);

 

• Victims of abuse, abandonment, or neglect by a parent (special immigrant juveniles applying for adjustment of status);

 

• Syrian asylees adjusting status pursuant to P.L. 106-378;

 

• certain “aged, blind, or disabled” applicants adjusting status under Section 245A of the INA; and

 

What factors do officials consider in their determination of inadmissibility based on public charge grounds?

Immigration authorities are required by statute to “at a minimum” consider the following factors when determining whether aliens are inadmissible or ineligible for adjustment of status on public charge grounds: age, health, family status; assets, resources, and financial status; and education and skills. Immigration and consular officers may also consider an affidavit of support submitted by an alien’s petitioner, which may demonstrate that the applicant can rely on the financial support of a sponsor and thus mitigate concerns that the applicant will come to rely upon government-funded assistance. The new rule is proposing to consider current and past receipt of designated public benefits above certain thresholds as a heavily weighed negative factor.  The rule would also make nonimmigrants who receive or are likely to receive designated public benefits above the designated threshold generally ineligible for change of status and extension of stay.

 

What is an affidavit of support? How is it related to public charge?

The affidavit of support form is an enforceable contract between the visa applicant, the applicant’s sponsor (usually the petitioner), and the government. Most family-based and certain employment-based immigrants are required to submit this form when applying for an immigrant visa or adjusting to LPR status.

 

If public charge is determined, can it be overturned?

If a USCIS officer denies an adjustment of status application based on a determination that the alien is inadmissible on public charge grounds, and the alien is thereafter placed in removal proceedings, in most circumstances the alien may renew the application before an immigration judge in those proceedings and request that the public charge determination be revisited. In short, there is no direct administrative appeal available from such a denial, and federal courts are divided as to whether they possess jurisdiction to review such denials.

 

Immigrant visa denials on public charge grounds by DOS generally are not subject to formal appeal or judicial review. However, the FAM states that applicants may overcome the public charge determination “by presenting evidence to convince [the consular officer] that the inadmissibility no longer applies.” Consular officers may consider such evidence if it is submitted within one year from the date of the visa denial.

 

What is a public charge bond?

The INA authorizes the admission of aliens who are inadmissible as public charges if they post a bond in an amount that is determined to be “suitable and proper” and are otherwise admissible. Despite this statutory authorization, USCIS officers and DOS consular officers appear to employ public charge bonds only rarely.

 

Is the receipt of public benefits by family members of applicants considered in a public charge determination?

USCIS cites as the basis for its public charge policies long-standing agency guidance that states, in most circumstances, benefits received by the child or other family member of an applicant for adjustment of status do not bear on the public charge analysis:

 

Service officers should not attribute cash benefits received by U.S. citizen or alien children or other family members to alien applicants for purposes of determining whether the applicant is likely to become a public charge, absent evidence that the family is reliant on the family member’s benefits as its sole means of support.

 

When will the Trump Administration’s new rules be issued?

 

It is uncertain if or when the new rules will be issued. DHS has notified OMB that it plans to submit drafts of the proposed regulations for review. After the review is completed, a Notice of Proposed Rulemaking will be published in the Federal Register and the proposed regulations will most likely undergo the notice and comment process of agency rulemaking. That process takes a minimum of two months and can take much longer before the rule becomes final.