Use of public benefits alone will not make your client a public charge.

Immigration officials must look at the totality of circumstances in determining whether someone is likely to become a public charge in the future. This includes a person’s age, health, income, assets, resources, education/skills, family they support, and support from relatives. Positive factors, like having a job, can be weighed against negative factors, like having used certain public benefits.

The public charge determination is a forward-looking test.

Health care, nutrition, and housing programs can help families remain strong, productive, and stable. Even if the rules change, a client will have a chance to show why they are not likely to rely on certain benefits in the future. The rule is currently not in effect and will not become effective for at least 60 days after the final rule is published. There is currently NO REASON for someone to withdraw from benefits for fear of being denied LPR status. (If your client is concerned about being able to petition for a relative, please see the information on in this place related to consular processing).

Some immigrants are exempted by law from the public charge test (even in its final form).

Exempt immigrants (or those eligible for a waiver) 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 Cuban parolees.

Lawful permanent residents are not subject to the public charge test when they apply for U.S. citizenship.

The proposed rule is not retroactive.

Any benefits previously excluded from the public charge determination will be considered ONLY if those benefits are received after the final rule is published.

Here are some of the key changes in the DHS proposed rule:

• Immigration officials could deny lawful permanent residency (Green Card) to immigrants if they have low incomes and a history of using certain public benefits, including:
  • health care (Medicaid; Medicare’s “Extra Help” subsidies for prescription medications);
  • food (Supplemental Nutrition Assistance Program (SNAP) or “food stamps”);
  • housing (Section 8 vouchers and subsidies); and
  • government cash assistance or institutional care.

• The proposed rule would create new hurdles for immigrants with family incomes below 250 percent of the federal poverty income line (~$63,000 annual income for a family of four), and especially high hurdles for families with incomes below 125 percent of the poverty income level (~$31,000 for a family of 4).
  • Green Card applicants in lower-income families, or who have a disability or serious medical condition, may be forced to pay for “bonds” of $10,000 or more to get LPR status.
• If an immigrant has a large family size, or major illness or disability likely to “require extensive medical treatment or institutionalization, those could also be considered negative factors toward whether they can get a Green Card.
• More closely monitor lawful permanent residents to make sure they have not hidden health status or financial conditions that later cause them to need benefits (within 5 years of getting their Green Cards). This will have a dramatic effect on extending the number of Texans subject to the “fear factor,” discouraging access to health care and food security programs.

If implemented, the new policy would set new rules for who could stay in or come to the United States, and it would have huge consequences: advocates fear that high numbers of eligible immigrants will forgo benefits and tax credits that help their families make ends meet and access health care and nutrition assistance.

The following categories of noncitizens are not subject to a public charge test or can qualify for a waiver of that test:

• refugees;
• asylees;
• survivors of trafficking,
• domestic violence,
• or other serious crimes (T or U visa applicants/holders);
• VAWA self-petitioners;
• special immigrant juveniles;
• certain people paroled into the U.S.;
• and several other categories of immigrants.

Public charge is also not a consideration when lawful permanent residents (green card holders) apply to become U.S. citizens.