Public charge: DHS issues final rule

On Sept. 9, 2022, the Department of Homeland Security (DHS) issued a final rule on the “public charge” ground of inadmissibility. The final rule will be effective as of Dec. 23, 2022 and will apply to adjustment of status applications postmarked on or after that date.

What (or who) is a public charge? What government benefits could make a person inadmissible as a public charge? What government benefits may a non-citizen apply for and receive without being considered a public charge?

By way of background, the concept of public charge has been enshrined in immigration law for decades. The idea is that if a person wants to immigrate to the US, they should be self-sufficient, industrious, hardworking and able to support themselves, versus having to rely on US taxpayers for their care and support. If a person could not sufficiently demonstrate they (or a sponsor on an affidavit of support) could provide for their basic care and necessities, they could be considered “inadmissible” and their immigrant visa or adjustment of status could be denied.

In 1999, legacy Immigration and Naturalization Service or INS (which is now the US Citizenship and Immigration Services or USCIS) issued guidance on what constitutes a public charge and how immigration officers should evaluate an applicant’s likelihood of becoming a public charge. That 1999 guidance had been followed up until the Trump administration, which issued new and more strict guidelines as to what constituted a public charge, creating much anxiety and confusion because it appeared that the receipt of any kind of government benefit could result in a person being considered a public charge and jeopardizing their ability to obtain a green card.

Thankfully, the recently issued final rule on public charge basically goes back to and follows the 1999 public charge guidance.

Who is a public charge? A person who is “likely at any time to become a public charge” means that it is likely that the person at any time in the future will become primarily dependent on the government for subsistence, as demonstrated by either: the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.

“Primarily dependent” means “significant reliance on the government for support, and means something more than dependence that is merely transient or supplementary.”  In other words, a person would need to receive welfare or be hospitalized for a long time.

What factors are considered for public charge? By law, immigration officers should consider the following factors in evaluating whether a person would be considered a public charge: age, health, family status, assets, resources, financial status, education and skills.

What government benefits may be considered under the final rule? As previously noted, to be considered a public charge, the person must have received public cash assistance or been institutionalized at government expense. “Public cash assistance for income maintenance” includes only the receipt of Supplemental Security Income (SSI), cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) and non-federal “cash benefit programs for income maintenance” received from the state.

“Long-term institutionalization at government expense” includes Medicaid institutionalization only under the Social Security Act. It does not include short periods of institutionalization or hospitalization for rehabilitation purposes or Home and Community-Based Services (HCBS) under Medicaid. DHS also will not consider receipt of the Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Medicaid (other than for long-term use of institutional services), housing benefits or any benefits relating to vaccinations, etc.

What if family members receive public benefits? Benefits received by family or household members are not a public charge factor, even if the person would be disqualified if they received the benefit directly, even if the applicant applied for the benefit on behalf of the family member. Therefore, if a person has a US citizen parent or child receiving government assistance, this should not affect their situation in relation to being considered a public charge.

This final rule is a welcome change (or return) to the traditional public charge analysis. If you are being petitioned and have received any kind of public or taxpayer assistance and have questions or concerns about a public charge, I would recommend that you consult with an attorney who can evaluate your situation and make sure your case will not be denied based on your being considered a public charge.

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