Public Charge
The public charge ground of inadmissibility has been a part of the U.S. immigration law for more than 100 years.
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. 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.
But receiving public benefits does not automatically make an individual likely at any time in the future to become a public charge.
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.
Background
Under section 212(a)(4) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(4), an alien seeking admission to the United States or seeking to adjust status to that of a lawful permanent resident (obtaining a green card) is inadmissible if the alien, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge." If an alien is inadmissible, United States Citizenship and Immigration Services (USCIS) will not grant admission to the United States or adjustment of status.
Applicability and Exemptions
The final rule applies to two types of applicants:
• Applicants for admission or adjustment of status to that of a lawful permanent resident (such applicants are subject to the rule’s public charge ground of inadmissibility unless Congress has exempted them from this ground).
• Applicants for extension of nonimmigrant stay or change of nonimmigrant status (such applicants are subject to the rule’s public benefit condition unless the nonimmigrant classification is exempted by law or regulation from the public charge ground of inadmissibility).
Congress has carved out certain exemptions to the public charge ground of inadmissibility, including:
• Refugees;
• Asylees;
• Certain T and U nonimmigrant visa applicants (human trafficking and certain crime victims, respectively); and
• Certain self-petitioners under the Violence Against Women Act.
For a full list of exempt classes of aliens, see 8 CFR 212.23 and the USCIS Policy Manual, Volume 8—Admissibility, Part G—Public Charge Ground of Inadmissibility—available online at https://www.uscis.gov/policy-manual/volume-8-part-g.
Definition of Public Charge
The final rule defines public charge as an alien who receives one or more public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period—such that, for instance, receipt of two benefits in one month counts as two months.
Under the final rule, “likely at any time to become a public charge” means more likely than not at any time in the future to become a public charge (in other words, more likely than not at any time in the future to receive one or more of the public benefits, as defined in the final rule) for more than 12 months, in total, within any 36-month period—such that, for instance, receipt of two benefits in one month counts as two months.
USCIS determines inadmissibility based on the public charge ground by looking at the factors outlined in 8 CFR 212.22. Our adjudicating officers review the totality of an alien’s circumstances when deciding whether an applicant is likely at any time to become a public charge.
This means that the adjudicating officer must weigh both the positive and negative factors. As required by section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and by this final rule, when making a public charge inadmissibility determination, a USCIS officer must consider the applicant’s:
• Age;
• Health;
• Family status;
• Assets, resources, and financial status;
• Education and skills;
• Prospective immigration status;
• Expected period of admission; and
• Sufficient Affidavit of Support Under Section 213A of the INA, Form I-864, or Form I-864EZ, when required under section 212(a)(4)(C) or (D) of the INA, 8 U.S.C. 1182(a)(4)(C) or (D).
No single factor makes an alien inadmissible based on the public charge ground—except not filing a sufficient Form I-864 or Form I-864EZ, when required. The determination of an alien’s likelihood of becoming a public charge at any time in the future is a prospective determination that is based on the totality of the alien’s circumstances and by weighing all of the factors that are relevant to the alien’s case.
Benefits Considered
Department of Homeland Security (DHS) will only consider public benefits as listed in the rule, including:
• Supplemental Security Income;
• Temporary Assistance for Needy Families;
• Any federal, state, local, or tribal cash benefit programs for income maintenance (often called general assistance in the state context, but which may exist under other names);
• Supplemental Nutrition Assistance Program (formerly called food stamps);
• Section 8 Housing Assistance under the Housing Choice Voucher Program;
• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
• Public Housing (under the Housing Act of 1937, 42 U.S.C. 1437 et seq.); and
• Federally funded Medicaid (with certain exclusions).
Benefits Not Considered
DHS will not consider:
• Emergency medical assistance;
• Disaster relief;
• National school lunch programs;
• The Special Supplemental Nutrition Program for Women, Infants, and Children;
• The Children’s Health Insurance Program;
• Subsidies for foster care and adoption;
• Government-subsidized student and mortgage loans;
• Energy assistance;
• Food pantries and homeless shelters; and
• Head Start.
Benefits Received by U.S. Service Members
Under the final rule, DHS will not consider the receipt of public benefits (as defined in the final rule) received by an alien who, at the time of receipt, or at the time of filing or adjudication of the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces.
Benefits Received by the Spouse and Children of U.S. Service Members
DHS will also not consider the receipt of public benefits by the spouse and children of anyone who is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces.
Benefits Received by Children Born to or Adopted by U.S. Citizens Living outside the U.S.
The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under section 320 of the INA, 8 U.S.C. 1431; or children (residing outside the United States) of U.S. citizens who are entering the United States for the purpose of attending an interview under section 322 of the INA, 8 U.S.C. 1433.
Certain Medicaid Benefits
DHS will not consider the Medicaid benefits received:
• For the treatment of an “emergency medical condition;”
• As services or benefits provided in connection with the Individuals with Disabilities Education Act;
• As school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law;
• By aliens under the age of 21; and
• By pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.
In Texas, as in all states, the public charge rule is a federal regulation that applies to individuals seeking admission to the U.S. or looking to adjust their status to become lawful permanent residents. Under this rule, a person is considered a public charge if they have received certain public benefits for more than 12 months within any 36-month period. The rule requires U.S. Citizenship and Immigration Services (USCIS) to consider a range of factors, such as age, health, family status, financial status, education, and skills, to determine whether an individual is likely to become a public charge at any point in the future. Benefits that may lead to a public charge determination include Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), certain cash assistance programs, Supplemental Nutrition Assistance Program (SNAP), and various housing and Medicaid programs, with some exclusions. However, benefits such as emergency medical assistance, disaster relief, school lunch programs, and others are not considered in the public charge determination. Special provisions also apply to U.S. service members and their families, as well as certain children of U.S. citizens. It's important to note that no single factor alone will make an individual inadmissible on public charge grounds, except for failure to file a sufficient Affidavit of Support when required. The determination is made based on the totality of the individual's circumstances.
