The immigration law has long established that “any alien . . . likely at any time to become a public charge” is inadmissible to the United States. On October 10th, US Citizenship and Immigration Services (USCIS) proposed a new rule to expand its definition of a “public charge.”  These are proposed changes.    They are not the law today, and likely will change if and when the rule becomes final.   

There is a lot of rumors and false suggestions about this proposed rule.  Wilson Law Group wants you to know what is the issue and who it really potentially impacts.

What is a Public Charge?

Currently, USCIS considers anyone a public charge if they are primarily dependent on the government to survive. This means that they are receiving over half their income or support from the government. To determine this, USCIS looks at the person’s use of government cash benefit programs (like SSI, TANF, and other general assistance programs) and whether the person has been institutionalized for long-term care at the government’s expense. Given the assortment of government benefits available in this country, this can potentially be a pretty complicated assessment. Unfortunately, it may get even more complicated soon.

The Proposed Rule Change

USCIS’s proposed rule would drastically expand what types of benefits count toward the public charge determination, including a list of non-cash benefits like medical, food, and housing assistance that were never previously considered.

Specifically, USCIS would start considering receipt of Medicaid benefits, SNAP (food stamps), and Section 8 housing assistance. USCIS is also contemplating adding CHIP (Children’s Health Insurance Program) benefits to the list of public benefits it will consider. At the same time, USCIS would lower the threshold value of benefits that would need to be received to be considered a public charge.

For example, if the rule were implemented today, a person who received more than $151.75 per month in cash or other “monetizable” benefits just once within the past 12 months could be considered likely to become a public charge, as could someone who received insurance coverage through Medicaid for one year within the past three years. If you received any cash benefits from the government, receipt of Medicaid benefits for just 9 months within the past three years would reach the threshold to be labeled a public charge.

Two Myths

Myth #1: My pending application could be denied based on this change.

False: At this point, the proposal is not yet in effect. Even if the rule goes into effect, any receipt of public benefits before the effective date would not be counted against the person. This means that if you are eligible for a government benefit that you need, you should not discontinue it based on this proposed rule. In the meantime, continue to monitor the situation to see if the proposed rule will truly go into effect.

Myth #2: If I have a green card and leave the United States, I may not be able to return due to the rule change.

False: Except in very narrow circumstances, the proposed rule would not apply to permanent residents (green card holders). The proposed rule is also inapplicable to:

  • Refugees, asylees, and asylum applicants;
  • TPS applicants;
  • U and T visa applicants;
  • VAWA self-petitioners;
  • Special immigrant juveniles;
  • People applying for visas at a U.S. embassy or consulate abroad (although the Department of State has its own public charge rule for such cases)

The Bottom Line

Though it does not apply to everyone, the proposed rule would result in needlessly restricting legal immigration by increasing denials based on an unreasonably high “public charge” standard that constitutes a “wealth bar”. Perhaps even more concerning, because it is so complicated (the proposal itself is 183 pages long) and so broad, immigrants in the United States may forego essential and legal government assistance for themselves or their US citizen children in order to avoid possible issues with their immigration status. This could result in serious and unnecessary hardship to thousands or millions of people.

Speak Out!

The proposed rule is not yet in effect because there is a required, 60-day public comment period. Anyone may leave a comment on the proposed rule by going here. All comments are due by December 10th. These comments may persuade the government to delay or make changes to the rule. It may also send a message to Congress to overrule the proposal before it goes into effect. WLG encourages you to let your government hear your voice!