What Is the Public Charge Rule, and What Does It Mean for Me?

By Jarbath Peña Law Group

If you are attempting to get your green card or a visa, you may have heard the term “public charge” mentioned. Many people understand this concept or how it applies to them. So today, we will attempt to define this concept and how it might impact you in your quest to improve your immigration status in the U.S.

What Is a Public Charge?

The concept of a public charge was created in 1882 when Congress passed a law allowing the United States to deny a visa to anyone unable to care for themselves without public assistance. In other words, being a public charge is one basis upon which the U.S. government can deny your request for a green card or visa. Unfortunately, Congress never bothered to define what a “public charge” was.

So for the past couple of decades, immigration officers have used a standard definition. A public charge is a person who primarily depends on the government for subsistence. You can demonstrate this in one of two ways:

• The person uses cash assistance for income maintenance, or

• The person is institutionalized for long-term care at a government-funded facility.

Therefore, if you have received the following types of assistance, you might be labeled a public charge and be unable to obtain your green card or visa:

• Temporary Assistance for Needy Families (TANF);

• Supplemental Security Income (SSI);

• General Assistance, which is state and local cash assistance; or

• Medicaid or other long-term care assistance for nursing homes or mental health facilities.

However, these parameters were altered in 2019.

Trump Era Alterations

During the Trump administration, this rule was dramatically expanded. President Trump actively sought to reduce the number of people immigrating to the U.S., and as part of that effort, he expanded what it meant to be deemed a public charge. How? In two ways.

Expanding Which Services Make One a Public Charge

The government benefits that once labeled you a public charge originally included welfare and subsidized long-term institutionalization. During his time in office, Trump expanded that to include these additional off-limits benefits:

• The Supplemental Nutrition Assistance Program (SNAP), otherwise known as Food Stamps;

• Federal housing subsidies;

• Section 8 housing assistance; and

• Medicaid benefits that are not for emergencies.

You could be denied admissibility if you got any of these benefits for longer than a year within any 3-year period of time. Your attorney can help you do the math, as this can be tricky to determine if you received overlapping benefits, or had benefits paused and resumed later.

Expanding the Definition of Public Charge

The Trump administration also significantly expanded who qualifies as a public charge. The 2019 rule included people who were “more likely than not” to become dependent on government assistance in the future. This change opened the gates wide to deny entry to anyone who did not have a certain income level. Even if the applicant had never used public assistance in their lives, the 2019 rule allowed government officers to block admission to the country if the applicant did not make enough money.

This meant that officers could look at all the following factors:

• Your age as it impacts your ability to work,

• Your family size,

• Your skills and the likelihood that those skills will earn you enough money to support your family,

• Your income and assets,

• Your credit score and credit history,

• Your debts, and

• Whether or not you have private health insurance to cover your future medical costs.

Many felt that this became a wealth factor that was unethical to consider, especially if the applicant had never used public assistance in the past.

President Biden Restored the Original Definitions

But President Biden rolled back this unfortunate expansion of the definition of public charge when he announced the final rule revision on September 8, 2022. Therefore, the current rule no longer allows the denial of your application because you might someday be on public assistance.

How does this affect me as an Immigrant?

Fortunately, these public charge policies have not blocked many immigrants from getting their green cards or visas. Let’s look at why it typically is not that challenging to avoid being declared a public charge under the current rule.

Public Assistance Is Typically Not Available to Immigrants

The first reason that this concept is not likely to impact you is that Congress has already made it impossible for most immigrants to get on welfare or participate in public assistance programs. Since immigrants cannot partake of most of these benefits until achieving some level of citizenship, this factor might not come into play.

Financial Sponsor As a Way Around Public Charge Inadmissibility

The second reason that the vast majority of visa applicants avoid this roadblock is that most have a financial sponsor. In fact, Congress requires green card applicants to have such a sponsor.

The sponsor is usually a spouse or family member who is a U.S. citizen who can show that they have sufficient income to assist the applicant should that become necessary. Basically, this sponsor is saying that if you experience financial obstacles in the future, you will not have to go on public assistance because the sponsor will be there to help.

However, there is an income threshold that the sponsor must meet. As of the writing of this article, as long as the sponsor is a U.S. citizen or green card holder, not on active military duty, and is only sponsoring one relative—the common minimum income required is currently $24,650, or 125% of the Federal Poverty Guidelines.

We Want to Help

Navigating the turbulent waters of immigration law in the U.S. can be challenging and stressful. But we can help. The knowledgeable attorneys at The Jarbath Peña Law Group know immigration law, and we can assist you throughout your naturalization journey.

It can be challenging to know what to file and when—so let us help. We’ve done it before, we know the rules, and we know what can delay your application or get it denied.

Our goal is to make this process as easy and efficient for you as possible. So, set up your free initial consultation today by calling 305-615-1005 or through our online contact form. We look forward to speaking to you and discovering how we can help.