The new final rule on the public charge ground of inadmissibility was announced on September 8 and becomes effective December 23, 2022. Under the final rule, a public charge is defined as “an alien who has received one or more public benefits, as defined in the rule, for more than 12 months within any 36-month period.” An alien who is likely at any time to become a public charge is generally inadmissible to the United States and ineligible to become a lawful permanent resident. However, receiving public benefits does not automatically make an individual likely to become a public charge in the future. The final rule addresses the public charge ground of inadmissibility, the public benefit condition application, classifications exempt from the public charge ground of inadmissibility, and public charge bonds.

How does the new public charge rule affect benefits for Ukrainian parolees?

The American Immigration Lawyers Association (AILA) provides the following guidance:

“The final rule also states that when a noncitizen, who is not a refugee, lawfully receives benefits available to refugees, the receipt of these benefits will not be considered. These benefits include resettlement assistance, entitlement programs, and other benefits generally available to refugees, including services provided to unaccompanied minors under 6 USC §279(g)(2). This includes Ukrainian Humanitarian Parolees, Afghan Humanitarian Parolees, and noncitizens who were victims of trafficking under the Victims of Trafficking and Violence Protection Act of 2000.”

Read on to learn more about public charge and the changes that will become effective.

USCIS Guidance for Practitioners and Applicants

The new final rule will be implemented Dec. 23, 2022 and will apply to applications postmarked (or electronically submitted) on or after that date. Until the effective date of the final rule, USCIS will continue to apply the public charge ground of inadmissibility consistent with the 1999 Interim Field Guidance to determine whether a noncitizen is inadmissible on the public charge ground. The 1999 Interim Field Guidance is the policy that was in place before the 2019 Public Charge Final Rule. The 2019 Public Charge Final Rule is no longer in effect after it was vacated March 19, 2021.

The Biden administration has returned to longstanding prior public charge policy, the 1999 “field guidance,” making it safe for immigrants and their families to use health, nutrition, and housing programs for which they qualify. Health care programs, including Medicaid and COVID care, housing, food programs, and many other vital services are once again safe to use.

When the vacatur went into effect, USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. USCIS continues to apply the public charge inadmissibility statute, including consideration of the statutory minimum factors in the totality of the circumstances, in accordance with the 1999 Interim Field Guidance that was in place before the Public Charge Final Rule was implemented. In addition, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status.

Applicants and petitioners should not provide information or evidence related solely to the Public Charge Final Rule. That means that applicants for adjustment of status should not submit Form I-944, Declaration of Self Sufficiency, or any evidence or documentation required by Form I-944 when they file their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 Petition for a Nonimmigrant Worker (Part 6), Form I-129CW Petition for a CNMI-Only Nonimmigrant Transitional Worker (Part 6), Form I-539 Application to Extend/Change Nonimmigrant Status (Part 5), and Form I-539A Supplemental Information for Application to Extend/Change Nonimmigrant Status (Part 3).

If an applicant or petitioner already provided information related solely to the Public Charge Final Rule, and USCIS adjudicates the application or petition on or after March 9, 2021, USCIS will not consider any information that relates solely to the Public Charge Final Rule, including, for example, information provided on Form I-944, evidence or documentation submitted with Form I-944, or information on the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3). Any other information received will be evaluated consistent with the statute, regulations, and policies in effect at the time of adjudication.
If you received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required under the Public Charge Final Rule, including but not limited, to Form I-944, and your response is due on or after March 9, 2021, you do not need to provide that information. However, you do need to respond to the aspects of the RFE or NOID that otherwise pertain to the eligibility for the immigration benefit sought. If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and consistent with the 1999 Interim Field Guidance, we will issue another RFE or NOID.

For applicants whose cases were denied by USCIS under the 2019 Public Charge Final Rule before the vacatur of the rule went into effect, USCIS states: “We will not re-adjudicate benefit requests denied under the 2019 Public Charge Final Rule (PDF) before that rule was vacated on March 9, 2021. However, you may file a new application or petition, if you are eligible, and we will adjudicate the new application or petition under the 1999 Interim Field Guidance (PDF) (in the case of an application for admission or adjustment of status) or under regulations that existed before the 2019 Public Charge Final Rule (in the case of an application or petition for extension of stay or change of status).”
USCIS published new form editions for affected forms. Starting April 19, 2021, we will only accept the 03/10/21 editions. Until then, you can also use the prior editions specified on each form webpage.

Background on Public Charge from USCIS and the Immigrant Legal Resource Center

What Is Public Charge?

“Public charge” is a ground of inadmissibility that could bar an individual’s admission to the United States on a visa or application for lawful permanent residence (application for a green card). Under Immigration and Nationality Act (INA) § 212(a)(4), an individual seeking admission to the United States or seeking to adjust status is inadmissible (and therefore unable to enter the United States or receive a visa or green card) if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” This ground of inadmissibility is triggered if the government determines the individual is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.

There is also a ground of deportability related to public charge. The ground of deportability impacts permanent residents and others who have been admitted to the United States, although it is very narrow and rarely applies. The deportation ground related to public charge is very different from the law discussed here. Neither the Trump-era rule nor the Biden administration’s proposed rule addresses the public charge deportation ground.

Receiving public benefits does not automatically make an individual a public charge. A number of factors must be considered when making a determination that a person is likely to become a public charge.

Currently, for immigrants adjusting status or seeking admission, only benefits received by the individual applying for admission or to adjust status are considered. Public benefits received by family members are not counted against the person applying for admission or adjustment for public charge purposes unless the cash benefits amount to the sole support of the family.

Public charge does not apply in naturalization proceedings.

Public charge is not a new policy; it has been a concept in immigration law since the Immigration Act of 1882. For about the last twenty years, the definition of a public charge has been someone “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

Who Does Public Charge Apply to?

Individuals applying for admission to the United States or adjustment of status (a green card) are subject to public charge unless they fall under certain statutorily exempted categories.
Certain groups of people are either exempt from public charge or may get a waiver for public charge when applying for admission to the United States, a green card, or other benefits with USCIS. These include:

  • Refugees and asylum applicants
  • Refugees and asylees applying for adjustment to permanent resident status
  • Amerasian immigrants (for their initial admission)
  • Individuals granted relief under the Cuban Adjustment Act (CAA)
  • Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA)
  • Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA)
  • Individuals applying for a T Visa
  • Individuals applying for a U Visa
  • Individuals who possess a T visa and are applying for adjustment to permanent resident status
  • Individuals who possess a U visa and are applying for adjustment to permanent resident status
  • Special immigrant juveniles
  • VAWA self-petitioners
  • Applicants for Temporary Protected Status (TPS)
  • Individuals applying to renew DACA status

How Does the Government Decide if Someone Is Likely to Be a Public Charge?

There are two tests relating to public charge, discussed further below, that the government uses to assess whether a person is likely to be a public charge: 1) the totality of the circumstances test and 2) the affidavit of support.

1. Totality of Circumstances Test

The INA requires an adjudicator to consider several factors when assessing public charge. Adjudicators shall “at a minimum” consider the person’s age, health, family status, assets, resources, financial status, education, and skills, and can also consider an affidavit of support.

This is considered a “totality of circumstances” standard—under this standard, the officer is required to consider all factors, both good and bad, and the officer must not rely on one single factor in making a decision.

Receiving public benefits does not automatically make an individual a public charge since the officer must consider all circumstances and must not rely on a single factor, not even current or past receipt of public benefits. Rather, the adjudicator needs to consider all of the factors together and must weigh both the positive and negative factors to determine whether the applicant is likely to become a public charge.
The totality of the circumstances test is forward-looking—the officer is supposed to consider all factors as it relates to future likelihood that the person will become dependent on the government.

2. Affidavit of Support

The second test is an affidavit of support. This requirement applies only to persons immigrating through a family visa petition and in some cases, employment-based petitions. Under this test, most people immigrating through a family visa petition must have an affidavit of support on Form I-864 submitted on their behalf, or they will be found inadmissible as a public charge. There are some exemptions, and those who fall into these exemptions have to file Form I-864W instead.

The I-864 affidavit of support requires the sponsor to have a certain level of income or assets (for income, 125% of the Federal Poverty Income Guidelines), and it is a legally enforceable contract to provide financial support to the applicant. Historically, a qualifying affidavit of support has been strong evidence the applicant is unlikely to be a public charge.

What Public Benefits Does the Government Consider When Making a Public Charge Determination?

Not all publicly-funded benefits are relevant to deciding whether someone is likely to become a public charge. For example, forms of assistance other than cash assistance, such as food stamps, health insurance, and rental assistance, are not considered negative factors in the public charge determination. In assessing the totality of the circumstances, an adjudicator may consider receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense to determine whether that person is likely to become primarily dependent on the government for subsistence. Short-term institutionalization for rehabilitation is not subject to public charge consideration under existing guidance.

Therefore, the only programs currently considered to determine if someone is likely to be a public charge are:

  • Cash assistance for income maintenance
  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF) (called CalWORKs in California)
  • State and local cash assistance programs (often called “General Assistance” programs)
  • Institutionalization for long-term care at government expense (covered by Medicaid) in a nursing home or mental health institution

If an individual received one of these public benefits programs, how long ago and the length of time that the individual received this assistance may be significant in determining public charge. The government has stated that the more time that has passed since an individual received cash benefits or was institutionalized, the less weight these factors will have as a predictor of future receipt of benefits.

What Public Benefits Programs Are NOT Considered When Making a Public Charge Determination?

Past, current, or future receipt of non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. These include:

  • Non-cash benefits (other than institutionalization for long-term care)
  • Non-cash TANF benefits such as subsidized childcare, transit subsidies
  • Medicaid (called Medi-Cal in California) and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care
  • Children’s Health Insurance Program (CHIP) (called Healthy Families in California)
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs, like Pandemic-EBT (P-EBT)
  • Housing benefits
  • Childcare services
  • Energy assistance, such as the Low-Income Home Energy Assistance Program (LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
  • Job training programs
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
  • Prison, jail, incarceration costs
  • Privately-funded treatment programs

All COVID-19 related vaccinations and health care are safe to use, including food assistance and housing programs.

State and local programs that are similar to the federal programs listed above are also generally not considered for public charge purposes. Finally, any programs that are entirely funded by private entities are not considered for public charge.

Whose Receipt of Public Benefits Are Considered?

Currently, for immigrants adjusting status or seeking admission, only benefits received by the individual applying for admission or to adjust status are considered. Public benefits received by family members are not counted against the person applying for admission or adjustment for public charge purposes unless the cash benefits amount to the sole support of the family.

When considering applications for those who intend to consular process, it is important to look to the policies followed by the Department of State (DOS). Consular officers rely on the guidance contained in the DOS’s Foreign Affairs Manual (FAM). The FAM instructs that “a properly filed, non-fraudulent Form I-864 should normally be considered sufficient to satisfy the [public charge] requirements.” Nonetheless, officers can consider a sponsor’s past or current receipt of means-tested benefits. While use of a means-tested benefit by the sponsor, in itself, should not result in a public charge finding, if a sponsor or any member of their household has received public means-tested benefits within the past three years, the consular official must review fully the sponsor’s current ability to provide the requisite level of support, taking into consideration the kind of assistance the sponsor received and the dates received. Nonetheless, the main public charge “test” is still whether the applicant is likely to become primarily dependent on cash aid or long-term institutionalization.

USCIS Guidance on Eligibility for Other Immigration Benefits

Q1: Is public charge inadmissibility a consideration when determining a person’s eligibility to file an immigrant petition on behalf of a relative?

A1: No. Petitioners are not subject to the public charge ground of inadmissibility when filing an immigrant petition on behalf of a relative. However, the beneficiary of that petition generally will be subject to the public charge ground of inadmissibility when applying for an immigrant visa, admission as an immigrant, or adjustment of status (unless exempt from the public charge ground of inadmissibility).

Q2: Does the receipt of public benefits by a naturalized or derived U.S. citizen affect their citizenship?

A2: No. Anyone who naturalized or derived U.S. citizenship cannot lose their citizenship because of receipt of public benefits while a U.S. citizen.

Q3: If a lawful permanent resident has received or is receiving public benefits and departs the United States, will they be found inadmissible for public charge upon their return?

A3: In general, we do not treat a lawful permanent resident who has been outside the United States as an applicant for admission when they return from a trip abroad and, therefore, would not generally undergo a public charge inadmissibility determination upon return. However, there are some exceptions to this general rule, such when the noncitizen:

  • Abandoned their status as a lawful permanent resident;
  • Has been absent for a continuous period more than 180 days;
  • Was in removal proceedings before they left the United States;
  • Has engaged in certain illegal activity;
  • Has committed an offense identified in INA 212(a); or
  • Tries to enter the United States at a place other than a port of entry.

Q4: When (in connection with which immigration benefit requests) does USCIS/DHS make public charge inadmissibility determinations?

A4: In general, all grounds of inadmissibility apply to immigration benefits that require that an applicant is admissible to the United States. Specifically, the public charge ground of inadmissibility applies to applicants for visas, admission, and adjustment of status, unless the noncitizen is exempt from the public charge ground of inadmissibility. Most commonly, we make public charge inadmissibility determinations as part of the adjustment of status application process (Form I-485, Application to Register Permanent Residence or Adjust Status) when noncitizens apply to adjust their status to that of a lawful permanent resident. U.S. Customs and Border Protection makes public charge inadmissibility determinations when applicants for admission who are subject to this inadmissibility ground present themselves for inspection at a port of entry.

Q5: What if a family member living in the applicant’s household uses a public benefit? Would that count against the applicant’s immigration status or eligibility for immigration benefits? *

A5: As a general rule, no. We would not consider the benefit a family member receives—unless that benefit is the family’s only means of financial support and the applicant lives in the same household. In that case, we may consider such benefit in making the applicant’s public charge determination.

Q6: Are lawful permanent residents subject to a public charge inadmissibility determination when they apply to renew their Green Cards?

A6: No. Lawful permanent residents applying to renew their Green are not subject to a public charge inadmissibility determination, as they are not required to establish that they are admissible to the United States.

Q7: How will the receipt of public benefits by a lawful permanent resident affect their application for naturalization?

A7: Naturalization applicants are not required to establish that they are admissible to the United States to be eligible for naturalization.

Could Being a Public Charge Make Someone Deportable?

Permanent residents and others who already have been admitted to the United States on a visa are subject to grounds of deportability, rather than grounds of inadmissibility. The public charge deportability ground applies in an even more narrow set of circumstances than the public charge inadmissibility ground, and to date it has been only rarely enforced. Noncitizens are deportable if they become a public charge anytime within five years after their last entry, unless they can prove that they became a public charge because of something that happened after entry.

In practice, very few people have been put into removal proceedings or removed based on this deportability ground. Cases have held that a person does not become deportable under the public charge ground for simply having received a public benefit. Rather, case law establishes three requirements that must be present for a person to be removed as a public charge: 1) the benefit program must provide that the state or other public entity can sue the recipient or other specified persons for repayment, 2) the public entity must demand repayment, and 3) the immigrant must refuse to pay for the cost demanded by the public entity.

USCIS Guidance on Deportability

Q1: How does DHS determine whether a noncitizen is deportable as a public charge?

A1: The standards defining who is deportable on the public charge ground are narrow and charges of deportability on the public charge ground have been rare. Under the Immigration and Nationality Act, a noncitizen is deportable if they become a public charge within five years after their entry into the United States from causes not affirmatively shown to have arisen since entry. The mere receipt of public benefits within five years of entry does not make a noncitizen deportable as a public charge.

In addition, a noncitizen is deportable only if:

  • The benefit granting agency that provides the benefit has the legal right to seek repayment from the noncitizen or another obligated party (for example, a sponsor under an affidavit of support);
  • The benefit granting agency makes a demand for repayment; and
  • The noncitizen or other obligated party, such as the noncitizen’s sponsor, fails to repay.
  • The benefit-granting agency must seek repayment within five years of the noncitizen’s entry into the United States, obtain a final judgment, take all necessary steps to collect on that judgment, and be unsuccessful in those attempts. Even if these conditions are met, the noncitizen still may show that the reason they have become a public charge arose after their entry to the United States. A noncitizen who can make such a showing is not deportable as a public charge.

For more information, visit https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/public-charge-resources

For the full text of the rule published in the Federal Register on September 9, 2022 visit
https://www.federalregister.gov/documents/2022/09/09/2022-18867/public-charge-ground-of-inadmissibility

The above guidance is excerpted from the following sources:

USCIS Public Charge Resources page, the September 9, 2022
Federal Register publication of the Public Charge Rule, and An Overview of Public Charge published by the Immigrant Legal Resource Center May 4, 2022.