On August 14, 2019, the Department of Homeland Security (DHS) published a final version of a new rule regarding “public charge.” Under immigration law, DHS can deny someone a visa if it believes that person is likely to become a “public charge,” that is, likely to rely on government support for that person’s livelihood.
The new DHS rule is currently blocked in Illinois by federal court order.
DHS published a proposed version of this rule on October 10, 2018, and accepted comments until December 10, 2018. More than 266,000 comments were submitted, most opposing the proposal. DHS nevertheless adopted most of its proposal in this final version, which was scheduled to take effect 60 days after its formal publication, on October 15, 2019. Four federal courts, including one in Chicago ruling in a lawsuit ICIRR filed with Cook County, issued orders blocking DHS from implementing the rule. All of these orders except the order covering only Illinois have been set aside by higher courts.
The DHS rule is now scheduled to go into effect on February 24, 2020, except in Illinois, where the rule is still blocked. The Illinois order could still be appealed and overruled.
Meanwhile, the State Department has issued its own public charge rule that closely resembles the DHS rule. This rule covers people applying for visas outside the US--including people who live in the US who need to complete their process at a US consulate. This rule went into effect on October 15, 2019; however, the State Department is not yet implementing this rule.
The text of DHS rule is posted at https://www.govinfo.gov/content/pkg/FR-2019-08-14/pdf/2019-17142.pdf. The State Department rule is available at https://www.govinfo.gov/content/pkg/FR-2019-10-11/pdf/2019-22399.pdf.
Who does public charge apply to?
Public charge applies to many individuals seeking admission to the US (from outside the US or already in the US applying for a green card) or anyone with a nonimmigrant visa seeking an extension or change. Public charge does NOT apply to refugees, asylees, and many other individuals who are applying for humanitarian relief or who have received such relief and are applying for green cards.
Public charge does NOT apply to naturalization. Permanent residents (who have already been admitted to the US) generally will not face scrutiny for public charge unless they travel outside the US for more than six months (in which case they are considered to be reapplying for admission).
This rule also does NOT cover the separate public charge ground for deportation; however, the US Department of Justice is working on a separate proposal regarding deportation based on public charge.
What benefits count for “public charge” under this rule?
Programs that count under current law
Programs that would count under the new rule
(starting February 24, 2020)
- Temporary Assistance for Needy Families (TANF)
- Supplemental Security Income (SSI)
- General assistance
- Long-term institutional care (such as nursing home care)
Programs that would count under the new rule (starting February 24, 2020)
- Supplemental Nutrition Assistance Program (SNAP)
- Public housing and Section 8 housing subsidies
- Medicaid: excluding
services for emergency conditions
services under the Individuals with Disabilities Education Act
coverage for children under age 21 or for women during or within 60 days after pregnancy
Under the rule, someone would be considered a public charge if that person receives any amount of these benefits or are enrolled in these programs for 12 months out of any 36-month period (counting use of two benefits in a given month as two months). The rule will not count benefits received prior to February 24, 2020. The rule change applies to only those whose applications for admission (including applying for a green card) are postmarked on or after February 24, 2020. Note that undocumented immigrants and temporary visa holders are already ineligible for most public benefit programs.
Does the rule apply if a non-citizen is using benefits such as Charity Care or the Cook County Direct Access program?
No! Only the benefits listed above would apply. Other programs should not be considered.
Does this rule apply if US citizen children use benefits?
No! The rule covers ONLY the applicants themselves; other eligible members of the household (e.g. US citizen children) could receive benefits without disqualifying the applicant. However, a noncitizen child could be subject to public charge for any benefits the child uses.
Should families currently receiving benefits leave those programs?
No! Until a final rule takes effect, families should still seek out any assistance for which they are eligible.
Would this rule affect people who do not currently receive any of these benefits?
The rule sets standards for determining if someone is "likely to become a public charge," meaning they are likely to use the listed benefits sometime in the future. The rule says that to make this determination, DHS MUST consider
age, particularly for minors and older individuals
medical conditions, including any conditions that require long-term care
family status, including household size, counting a wide range of relatives
household assets, resources, and financial status, including income, credit history, and past or present use of the listed public benefits
education and skills, including English proficiency
whether the immigrant’s sponsor has filed an affidavit of support showing that the sponsor has enough income and assets to adequately support the immigrant financially.
What would happen if someone is found likely to become a public charge?
A green card applicant who is found likely to become a public charge can still ask to post a bond with DHS of at least $8,100. If the applicant is admitted and later becomes a public charge, the applicant would lose the entire amount of the bond to DHS.
WHAT CAN YOU DO?
Learn more about the public charge rule at www.icirr.org/publiccharge
Help educate your neighbors and communities with correct information about the rule change
For more information, please email us at firstname.lastname@example.org.
ICIRR's Fact Sheet Regarding Public Charge (February 24, 2020)
For more information, visit www.protectingimmigrantfamiliesillinois.org
ICIRR Partner organizations participated in a Public Charge town hall hosted by Univision Chicago. You can watch the whole video (in Spanish) below.
In the News:
New York Times: Trump Policy Favors Wealthier Immigrants for Green Cards (August 12, 2019)
The Hill: Critics fear widespread damage from Trump 'public charge' rule (August 24, 2019)
If you have specific questions about public charge or would like to host a community presentation of the issue, please send an e-mail to email@example.com