UPDATES (10/29/19):
- Dept. of Homeland Security final rule: A federal court enjoined the final rule from taking effect (it was scheduled to go into effect on 10/15/19). The injunction will remain in place until the entire case is heard, unless the government appeals the injunction and it is overturned.
- Dept of State interim final rule: DOS published an interim final rule in October 2019 to mirror the enjoined DHS regulation. The regulation was scheduled to go into effect on October 15, 2019, but implementation has been partially delayed. DOS plans to issue a new form (Public Charge Questionnaire), but it is not anticipated to go into effect until 2020.
- Presidential Proclamation on Health Insurance: The October 4, 2019 proclamation states that immigrant visa applicants will be denied entry to the US unless they can show that they have or can get health insurance within 30 days of admission or they have resources to pay for reasonably foreseeable medical costs. The proclamation will go into effect on 11/3/19, though litigation is likely.
For more detail, see CLINIC’s analysis
What to Tell Clients Who are Considering Withdrawing From Benefits
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.
Details of the proposed changes to public charge:
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.
Who is Exempt?
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.
How to Advise Clients Applying for LPR Status
Counseling Clients on Public Charge and Public Benefits (Practice Advisory, NYIC)
This advisory helps you understand what immigration benefit your client in seeking. For a large number of clients, the public charge regulation has NO IMPACT on them. Yet, because of misinformation and the climate of fear, many of our immigrant community members are dropping out of public benefits.
Help your clients understand the proposed rule, so that they can make informed decisions that take into account the support and well-being of their families.
Public Charge & Consular Processing
Additional Resources
Comprehensive Guide to Public Charge (ILRC, May 2019, $85) This is a great resource for those interested in learning more about the legal issues involved in a public charge determination (available in hard copy or PDF).
Protecting Immigrant Families Campaign
- Sign up for their newsletter for the latest updates.
Benefits Included in Public Charge
- Cash Support for Income Maintenance*
- Long Term Institutional Care at Government Expense*
- Non-Emergency Medicaid**
- Supplemental Nutrition Assistance Program (SNAP or Food Stamps)
- Medicare Part D Low Income Subsidy
- Housing Assistance (Public Housing or Section 8 Housing Vouchers and Rental Assistance)
* Included under current policy as well
** Exception for certain disability services offered in school.
Benefits Excluded from Public Charge
ANY benefits not on the included list will not be applied toward the public charge test, such as:
- Disaster relief
- Emergency medical assistance
- Entirely state, local or tribal programs (other than cash assistance or institutionalization for long-term care)
- Benefits received by immigrant’s family members
- CHIP*
- Head Start
- Women Infants and Children (WIC)
- School Breakfast and Lunch
- Energy Assistance (LIHEAP)
- Transportation vouchers or non cash transportation services
- Non-cash TANF benefits
- Federal Earned Income Tax Credit and Child Tax Credit
- Student Loans
*DHS asked for input on inclusion of CHIP, but the program is not included in the regulatory text.