Public Charge For Immigration Purposes

Disclaimer:  This document is intended for general informational purposes only and does not constitute legal advice.  Always consult with an attorney to determine your own needs related to the information in this document.

What does Public Charge mean for immigration purposes and why should I care about it? 

In general terms, for immigration purposes, someone wanting to come to this country or to adjust status in this country cannot do so if that person will be primarily reliant on public assistance after he or she arrives.  This is why, when someone wants to come to the United States on an immigrant or non-immigrant visa, whether a family related visa or employment related visa, that person usually must show that he or she has the means to support his or herself, or provide the government with an affidavit of support. 

A few exceptions to this requirement to note are refugees or asylees seeking adjustment, SIJS applicants, VAWA or T or U visas which are visas for victims of trafficking or crime victims. 

An affidavit of support is an affidavit from, usually a family member, in which that person swears to support the immigrant after he or she arrives to the United States.   The person wishing to enter the country or to adjust status must show income at least or above %125 of the Federal Poverty Guidelines.

Why do you need to know this?  If you or someone you know, such as a relative or employee, wishes to come to the United States or to adjust status, you will need to be able to prove that you or that person can support themselves.  Or, you will need to have someone who does have sufficient assets, usually the person petitioning for you to come, provide an affidavit of support for you or your relative or employee.  This person is commonly known as a sponsor. 

If you cannot meet the income guidelines and you do not have a sponsor who will provide an affidavit of support or an employer who can provide the terms and conditions of employment in the United States, you will not be allowed to enter or to adjust your status.  As the government tightens restrictions on immigrations, more scrutiny is being placed on whether someone is likely to become a public charge after he or she enters the United States or adjusts status.  Therefore, it is very important to make sure you know what income and assets you or your sponsor need to prove to avoid being refused immigration status on account of public charge. 

What does it mean to be a public charge?

The law and regulations state that you will be considered to be a public charge if you are likely to rely primarily on the government for support, either through reliance on governmental cash assistance, or because you are likely to require long term institutionalization.  Things the government will consider when determining whether someone will be a public charge are age, health, family status, assets, resources and financial status and education and skills.

Currently, the use of benefits such as WIC, CHIP, SNAP (food stamps), Medicaid, subsidies under the Affordable Care Act, do NOT make one a public charge.  However, the Trump administration has proposed new rules regarding what who would potentially constitute a public charge.  when the new rules are published, which could be any time, it is anticipated, based on the proposed rules, that the use of many benefits that currently don’t make one a public charge, now will make one a public charge. 

Which public benefits will be considered in a public charge determination?

  • Any monetizable benefit such as cash assistance for income maintenance, including
  • SSI, TANF or any federal, state or local general assistance.
  • SNAP (ie., food stamps)
  • Section 8 housing vouchers
  • Non-cash benefits that cannot be monetized (whatever that means)
  • Non-emergency Medicaid services
  • Medicare Part D cost sharing (prescription drug coverage)
  • Subsidized housing – we are also seeing a push from HUD to deny families with any undocumented immigrants access to public housing.
  • DHS specifically stated to be considering including CHIP and requested public

comment specifically on that question.

  • DHS is specifically proposing to expand the timeframe to include anyone who may

at any time ever in the future be likely to become a public charge.

The proposed regulations indicate that the rules will not be retroactive.  That means that current use of these benefits by immigrant families SHOULD NOT affect future public charge determinations.

Why is this important? 

There are many families in the United States with mixed status, where some members of the families might be United States Citizens, some might be Legal Permanent Residents, and some may be undocumented.  Those that are undocumented may be able to adjust their status to become legal residents based on family relationships.  Further, many families already lawfully here wish to bring their loved ones to join them.  Many immigrant families are comprised of United States Citizen children and parents without status. 

The proposed regulations have already had a chilling effect on immigrant use of public benefits, even where the use of those public benefits is currently legal AND for the benefit of United States Citizen children.  This is not only detrimental to the families, who may go without nutrition assistance or medical care, it becomes a public health risk when large numbers of immigrants are unable to access health care for fear of not being able to adjust status or petition for family members to do so. 

I am in a mixed family that receives public benefits?  What do I do?  Should I stop accessing those benefits?

The answer right now is no.  Because the regulations should not look backwards in time, any current use of public benefits should not affect the future ability to adjust status or petition for a relative.  However, it is important to keep up to date on the regulations.  When the regulations are released, you may need to re-evaluate the use of public benefits for future immigration benefits. 

It is always best to consult an attorney when you have any questions about what actions may impact your current or future immigration status.  Contact my office at (915) 209-5910 to schedule a consultation if you would like to discuss how public charge considerations affect your immigration case.

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