Public Charge Rule 2021: What You Need to Know

A new reason for visa and green card rejection is on the horizon. As of February 24, 2020 government officials can reject immigrant applicants if they suspect that they are likely to become a public charge (receive public benefits). These rule changes change the definition of public charge and inadmissibility. Thus, it could affect your ability for approval or change of status.

This guide will explain the changes regarding the Public Charge Rule, and the potential effects.

If you have any questions about the Public Charge Rule, feel free to email me directly at Michael@AshooriLaw.com.

Overview:

1. History of Public Charge

2. 1999 Public Charge Definition

3. 2020 Public Charge Definition

4. Rule Change Impact

5. Passing the Public Charge Test

6. How to Proceed

7. Conclusion

1. History of Public Charge

The idea of self-sufficiency has long been a factor United States immigration. As early as the 1800s, there have been attempts to keep those who might become public charges out of the United States. During the Great Depression, increased regulations were put in place to ensure immigrants would be able to support themselves. This included requiring immigrants to be sponsored by someone in the US. Throughout the 1990s, increased measures to prevent immigrants from using public assistance programs in the United States were added. This included requiring Form I-864 and the passing of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) in 1996.

In 1999, the current standard for public charge was set. This stated that applicants who were likely to become primarily dependent on the US government, either through cash assistance programs or long-term institutionalization, would not be admitted to the United States. Therefore, they were deemed as “inadmissible.”

2. 1999 Public Charge Definition

Prior to the February 24, 2020 rule change, a visa would be rejected if the beneficiary was determined to become primarily dependent on public assistance or to require long-term institutionalization paid for by the US government.  Public assistance referred only to cash assistance programs, such as SSI or TANF. Importantly, this did not include other forms of public assistance such as food stamps, medicaid, or subsidized housing.

3. 2020 Public Charge Definition

As of February 24, 2020, the public charge standard has changed. The standard is laid out in INA § 212. It states that anyone likely to become a public charge should not be admitted to the United States. It defines public charge as anyone who will use public assistance for at least 12 months over a 3 year period. Furthermore, the definition of public assistance has been expanded to include food stamps, SNAP, Medicaid, and Section 8 or Section 9 housing. The rule changes also call for an expanded set of factors to be considered.

In particular, one’s age, health, family status, finances, and skills are all now heavily considered. Those over 65 are deemed to be a higher public charge risk. Additionally, anyone with a health condition noted on Form G-639 and those without health insurance, are considered a higher risk. Those with children are also considered to be a higher risk. Other factors that increase one’s risk factor include debt, a poor credit score, previously receiving a USCIS fee waiver, having declared bankruptcy, and being behind on child support. Those with limited work and/or education experience, particularly lack of English fluency, will also be negatively considered.  Additionally, anyone who had applied for and/or received public assistance, particularly if it has been for a period of time over 12 months, is considered to be at higher risk. None of these factors independently will determine admissibility to the United States. All factors will be considered. However, previous use of public assistance and one’s ability to pay for medical costs are likely to be weighted most significantly.

4. Rule Change Impact

The public charge analysis is only considered when: (1) one is seeking to enter the United States as an immigrant or (2) adjust to immigrant status within the United States.

This rule change does not make it illegal for you to receive public benefits or mean that you will be deported from the country. It also does not affect naturalization to become a US citizen.

However, it does mean more applications will be rejected. It also means that some people who were hoping to become permanent residents of the United States may no longer qualify. Lastly, those who were expecting to extend their status may no longer be eligible for an extension.

It is also important to note that not everyone will be impacted by the public charge rule. US military members and their families are exempt. Additionally, those on the SIJS, U, T, and VAWA visas will not be affected by public charge rules. Also, those in the United States as asylees, refugees or through the NACARA or Cuban Adjustment Act will not be affected by these rule changes.

Additionally, some public assistance is not factored in when determining if someone is likely to become a public charge. This means that even if you may receive these benefits, you would not be considered a public charge. This includes WIC, Head Start, emergency medical assistance, Social Security retirement, military members or veterans benefits, benefits used only by family members (not the primary beneficiary), tax credits, or state or local programs as long as they are not cash assistance.

5. Passing the Public Charge Test

In order to prove that you are not at risk of being a public charge, several documents may be useful. It is firstly useful to demonstrate education and work experience, as well as English proficiency. You should also provide tax records. Evidence of health insurance or ability to pay for medical costs should also be provided.

6. How to Proceed

There are several ramifications for this change.

Firstly, all foreign nationals must now submit Form I-944. Form I-944 is the Declaration of Self-Sufficiency. This form is completed by the beneficiary and demonstrates why they will not become a public charge. It does not need to be filed by those exempt from the public charge inadmissibility charge, as discussed in Section 4: “Rule Change Impact.” Applicants may also need to include additional documents in their applications to demonstrate they are not a risk of becoming a public charge as discussed in Section 5: “Passing the Public Charge Test”.

Secondly, as discussed in Section 4: “Rule Change Impact,” some applicants may no longer be eligible for some nonimmigrant visas. These individuals can work with an immigration lawyer to minimize their risk of rejection. My team and I would be happy to discuss your options with you.

7. Conclusion

As of February 24, 2020, new rules regarding Inadmissibility on Public Charge Grounds will go into effect. These rule changes change the definition of public charge and could affect your ability for immigrant and nonimmigrant benefits. You should now have a better sense of the public charge regulations, who is impacted, and how to proceed.

My team and I will continue to post updates as applicable. If you have any questions about any of the information in this post or about public charge in general, my team and I would be happy to help. I can be contacted directly at Michael@AshooriLaw.com.