New Public Charge Laws

US Citizenship & Immigration Service introduces new public charge laws for immigrants and green card applicants

Immigration public charge law is a test to determine if an immigrant applying for permanent residence, a green card, or visa to enter the United States will depend on public benefits in the future. If the USCIS thinks that the immigrant is likely to become a public charge, the USCIS will deny the immigrant’s green card or visa.

WHO DOES PUBLIC CHARGE AFFECT?

Public charge affects immigrants who are applying for permanent residence through a U.S. citizen or permanent resident, or who are applying for a visa to enter the United States. Other immigration cases, like asylum, U visas, naturalization, and cancellation of removal in court are not affected!

WHO IS NOT AFFECTED BY PUBLIC CHARGE?

Public charge law does not affect many immigrants.  These immigrants are:

Refugees and asylees

U Visa immigrants

T Visa immigrants

VAWA immigrants

SIJS and DACA immigrants

TPS applicants

The majority of permanent residents

U.S. citizens

If an immigrant is not currently applying for any immigration status, the immigrant is not affected by the public charge law. The public charge test only matters when an immigrant seeks a green card through a U.S. citizen or permanent resident family member. If you are seeking green card, consult with an immigration attorney.

SHOULD UNDOCUMENTED IMMIGRANTS WORRY ABOUT PUBLIC CHARGE?

If an immigrant is not seeking green card, then public charge law does not apply. For many, the need for health care, food support, and housing will far outweigh a public charge concern. Consult with an experienced attorney if you are applying for a green card. 

I WANT TO APPLY TO BECOME A U.S. CITIZEN. WILL IT HURT MY CASE IF I USE BENEFITS?

No! There is no public charge test for naturalization, the process to become a U.S. citizen. Permanent residents who travel outside the United States for more than 180 days on any single trip could have to pass a public charge test when they return to the United States.

WHAT IF MY CHILDREN OR OTHER FAMILY MEMBERS RECEIVE PUBLIC BENEFITS?

The new rules that took effect on February 24, 2020. They apply to immigrants who received public benefits and now applying for green card or visa. Benefits used by your family members, like U.S. citizen children do not count in the public charge test.

WHAT DO THE NEW PUBLIC CHARGE RULES SAY?

There are two new public charge rules: one from the Department of Homeland Security (DHS), and a similar one from the Department of State (DOS). The new rules set a stricter test for people applying for a green card at an immigration office in the United States.  These same rules also apply at a U.S. consulate abroad. In applying the rules, an immigration officer will consider different factors, including family income, the applicant’s age and health, how likely the applicant is to be employed, and receipt of certain public benefits (however, most green card applicants do not qualify to receive the benefits included in the new rule). Talk to a trusted immigration attorney if you are getting ready to file an application for a green card.

WHEN DID THE NEW PUBLIC CHARGE RULES TAKE EFFECT?

The new DHS rule took effect for applications filed in the United States on February 24, 2020. This rule does not apply to applications to get a green card in the United States that were filed before February 24. The new rule does not consider any public benefits used before February 24, 2020.

The new DOS rule, for immigrants applying at a U.S. embassy or consulate abroad or for a visa to enter the country, took effect on February 24, 2020. Immigrants with the interviews scheduled after February 24, 2020 will have to complete a new public charge questionnaire.  The DOS will evaluate them under the new DOS rule.

DOES PUBLIC CHARGE AFFECT MY ELIGIBILITY FOR CERTAIN PUBLIC BENEFITS?

Public charge does NOT impact whether you are eligible for health and other public benefits programs. If you qualify for certain public benefits, you are still eligible.

ARE ALL PUBLIC BENEFITS PART OF THE NEW PUBLIC CHARGE RULES?

Many public benefits and programs are not part of the public charge test in the new rules. For example, use of WIC, Medicaid for pregnant women (including up to 60 days after a pregnancy), emergency Medicaid, and Medicaid use by children under 21 [note: in California, some use of Medi-Cal for children and young adults up to age 26 is not part of the new rule], Head Start, free and reduced cost school lunches, and many other benefits are not part of the public charge test and will not impact your immigration case. Many states and counties have health care and other non-cash public programs that are not part of the new rules either.

WHAT PUBLIC BENEFITS ARE PART OF THE NEW PUBLIC CHARGE RULES?

The public charge test ONLY considers use of federally-funded Medicaid (called Medi-Cal in California, with exceptions for emergency, pregnancy, use by children and young adults, as mentioned above, and Medi-Cal programs funded by the state); federally-funded Food Stamps (called SNAP, or CalFresh in California); federal public housing, Section 8 housing assistance and project-based rental assistance; federal, state, and local cash assistance; long-term institutionalized care paid for by the federal government; and no other programs.  If you think you are using a benefit that could be a problem, consult an experienced immigration attorney.

I FILED MY GREEN CARD APPLICATION BEFORE FEBRUARY 24, 2020. DO THE NEW PUBLIC CHARGE RULES APPLY TO ME?

It depends where you filed it. The new DHS rule, which applies to cases decided by USCIS, does not apply to cases filed with USCIS before February 24, 2020. Remember that different public charge rules apply if your green card interview is at a U.S. embassy or consulate abroad. People whose cases are processed at a U.S. consulate or embassy with interviews on or after February 24, 2020 will have to complete the new public charge questionnaire form, DS-5540.  These immigrants are subject to the new public charge rule.

IF I USE ONE OR MORE OF THE PUBLIC BENEFITS IN THE NEW PUBLIC CHARGE RULES ON OR AFTER FEBRUARY 24, 2020, WILL MY GREEN CARD OR VISA APPLICATION BE DENIED?

First, if you are applying for a green card and think you receive a benefit that might be a problem, talk to an experienced immigration attorney.  Officers must evaluate many factors when they decide whether you are likely to depend on public benefits in the future, including your family’s income and other resources, your age and health condition, and your education and likelihood of being employed. Receipt of one or more of the benefits included in the new rules is just one part of the public charge test.

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