The phrase “public charge” has been all over headlines and newscasts lately. Here, we’ll explain the basics of the new rules, why you might be able to rest easy as the new rules do not apply to all immigrants, and what the new law means for the people it does affect.
Basics of the New Law
U.S. immigration law has always had a rule in place barring entry of immigrants who would be “primarily dependent” on the government for subsistence. Now, however, the standard is much tougher. Government officials now must ask whether the immigrant is “likely at any time to become a public charge.” If the answer is yes, the person is inadmissible. The new rule sets out a number of factors that an immigration officer must consider in deciding whether someone is “likely” to become a “public charge.” At a minimum, the immigration officer must consider the immigrant’s age, health, family status, assets, resources, financial status, education, and skills. The immigration officer must look at the “totality of the circumstances” to decide whether someone is likely to become a public charge. But the list of public assistance programs that are potentially disqualifying is now much broader, and the immigration officer must now consider additional factors, such as whether the applicant earns more than 250% of the federal poverty cutoff. These factors are discussed in more detail below. But first, we examine whom these new rules apply to.
Does the Public Charge Rule Apply to Me?
The new public charge laws are lengthy, detailed, and contain nearly thirty categories of immigrants that are exempt from the public charge rules. It is therefore important to consult an attorney before determining whether these laws will affect your unique situation. Broadly speaking, however, the new public charge rules apply to immigrants seeking to enter the United States or to become lawful permanent residents. They do not apply to those who are already lawful permanent residents and now seek to undergo the naturalization process (becoming a citizen). It is important to remember, however, that if a naturalization applicant travels outside the United States for more than 180 consecutive days and re-enters, he or she willbe subject to the new public charge rules.
You are also exempt from these rules if you are seeking refugee, asylum, or were a victim of domestic abuse or trafficking. There are many other categories of immigrants who are exempt. Speak to an attorney to find out if you may fall into one of these exempt categories.
The New Standards
The new public charge rules are much stricter than the standards they replace. Immigration officers must now ask whether, looking at all the relevant circumstances, the applicant is likely to become a public charge. The statute defines “public charge” as an immigrant who has received certain public benefits for more than twelve months out of the last three years. But, importantly, when counting how many months of benefits an immigrant receives, an immigration officer will count one month for each benefit an immigrant receives on a monthly basis. For example, if an immigrant received two benefits each month for six months, this would be enough to make him ineligible. Receiving three benefits each month for only four months would also be enough to make an immigrant ineligible.
The list of benefits that could disqualify an immigrant is lengthy. Examples include supplemental social security income, SNAP (Supplemental Nutritional Assistance Program), Section 8 Housing assistance, and Medicaid (with some exceptions).
So how will an immigration officer determine whether a person is “likely” to receive these types of benefits? The analysis will be unique to each immigrant, considering the “totality of the circumstances.” But there are a few “heavily weighted” factors. An immigrant is likely to be deemed inadmissible if:
- The immigrant is not a full-time student and cannot show current employment, recent employment history, or a reasonable prospect of future employment.
- The immigrant has received 12 months of benefits over the last three years, as discussed above.
- The immigrant has been diagnosed with a medical condition that is likely to require extensive medical treatment and the applicant is uninsured and will likely have difficulty obtaining insurance.
- The immigrant has been previously found inadmissible or deportable by an immigration official based on receiving too many public benefits.
On the other hand, an immigrant will probably not be found inadmissible based on public charge grounds if:
- The immigrant has household income or support from a sponsor that equals at least 250% of the Federal Poverty Guidelines for his or her household size. (As of the time of publication, the federal poverty guideline on income for a family of four is $25,750—and 250% of this amount is $64,375.)
- The immigrant has adequate private health insurance.
Are the new rules already in effect?
The new standards on what it means to be a public charge took effect on February 24, 2020. They were meant to take effect in late 2019, but a federal district court kept them from taking immediate effect. Recently, however, the United States Supreme Court overruled this injunction. Legal challenges to these new rules are still ongoing. The United States Supreme Court has not decided whether the new rules are legally proper and may stay in effect permanently. Instead, it ruled only that these new rules must stay in effect until all legal challenges are fully resolved. Thus, for now, until the rules are successfully challenged, these new standards are in effect—and immigration officers will be forced to apply them.