New Public Charge Rule

New Public Charge Rule


No matter whether you apply for permanent residence in the US (through “Adjustment of Status”) or from abroad (through “Consular Processing”) a new Public Charge Rule that went into force on February 24, 2020, will apply to you.

  • Who is a Public Charge?

Until recently, “public charge” meant an individual who was likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.” The emphasis was put on cash benefits received from the government.

According to federal law (INA Section 212(a)(4)), an individual seeking admission to the United States or seeking to adjust status is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge”. In other words, such individual is not eligible for a green card.

In making public charge determination, immigration officers review all of applicant’s circumstances, including:

  • Age
  • Health
  • Family status
  • Assets, resources, financial status
  • Education and skills

The immigration officer may also consider Affidavit of Support prepared on behalf of the intending immigrant by his/her sponsor.

  • So, is this a new concept?

No, it is not.  However, the Trump administration changed its scope through restrictive interpretation of existing law.  In addition, both the US Department of Homeland Security and State Department enacted new rules on Public Charge which after a lengthy legal battle in federal courts came into effect on February 24, 2020, after the US Supreme Court allowed for the rule’s enforcement nationwide.

According to a new policy, more emphasis is placed on enforcing this provision of the public charge which can ultimately lead to decreasing of approvals of green card applications of those with low or moderate income.

  • What did actually change and why is it a big deal?

A new rule on public charge expanded its definition.  Now, public charge means an alien who receives one or more public benefits, for more than 12 months in the aggregate within any 36-month period. This means if, for example, you receive 2 of the below-mentioned benefits simultaneously for a period of one (1) month, it actually equals to 2 months of receiving public benefits.  So, what are those benefits that are considered public benefits? Here they are:

  • Supplemental Security Income (SSI)
  • Temporary Assistance to Needy Families (TANF)
  • State cash general assistance programs
  • Medicaid (with certain exclusions)
  • Supplemental Nutrition Assistance Program - SNAP (food stamps)
  • Section 8 housing: Housing Choice Voucher and Project-Based Rental Assistance
  • Federal public housing

The use of public benefits, application for receiving such benefits or certification to receive Medicaid (other than for emergencies, for those under 21, or pregnant women), SNAP, Section 8 Housing and Public Housing for more than 12 months in a 36-month period beginning on February 24, 2020 will be considered a heavily weighted negative factor.

If you applied for any of these benefits, you may be determined “a likely to become a public charge”.

  • Important exception:

This new policy does not affect use of private charity, WIC (Women, Infants, and Children) nutrition program, CHIP (Children’s Health Insurance program), school lunches, food banks, shelters and state and local health care programs. So, if you are using any those programs, that’s ok – it will not impact your green card application.

  • Who is exempt form this rule?

The new policy exempts certain immigrants from the new public charge rule all together. The rule does not apply to:

  • Refugees
  • Asylees
  • Afghans and Iraqis with special immigrant visas
  • Certain nonimmigrant trafficking and crime victims
  • Individuals applying under the Violence Against Women Act
  • Special immigrant juveniles; and
  • Those to whom DHS has granted a waiver of public charge inadmissibility.

Form I-944

Those who apply for a permanent residence in the US, based either on family or employer sponsorship, must now include a new Form I-944, Declaration of Self-Sufficiency in the Adjustment of Status filing.[1]

  • It applies to all subject to public charge, including derivative beneficiaries in employment-based cases.  For example, if you have approved I-140 petition, and you are applying for a green card together with your wife, you both need to file a separate I-944 Form along with your I-485 applications.

  • It is a long (18-pages) form, including very detailed questions addressing 5 statutory factors (age; health; family status; assets, resources and financial status, and; education and skills).

  • Affidavit of Support (Form I-864 and I-864A)

Under previous longstanding policy, a sponsor’s Affidavit of Support in family-based cases could overcome negative factors in a public charge determination. Under a new rule, such affidavit is just a positive factor in the totality of the circumstances test.  It is not sufficient on its own to protect an applicant for a green card from being determined “likely to become a public charge”.

Unfortunately, for seniors, this may become a barrier to immigrating to the US, because of number of negative factors (age, lack of knowledge of English, pre-existing medical conditions and no perspective for finding a job) that are typically prevailing in their case.   It means that sponsoring own parents for green card will be much more complicated, even if the US citizen sponsor’s financial situation is very stable; the sponsor’s guarantee is not good enough to eliminate likeliness of parents becoming public charge.

  • Risks of green card application denial

Please be aware that use of public programs does not automatically make you a public charge!

Immigration officers must evaluate all your circumstances (5 statutory factors mentioned above and totality of circumstances).  All positive factors (for example, having a health insurance or fluency in English) can be weighed against negative factors (for example, using public benefits or being in poor health).

  • Does the new Public Charge Rule apply to those who are changing their nonimmigrant status too?

Yes! If you are on a student visa and are changing your status to H-1B (work visa); or if you are on H-1B work visa and are extending your status, the immigration officer will look to see if you have ever used any public benefit while on a student or H-1B visa.  BUT you do not need to submit Form I-944 when you are changing or extending your nonimmigrant status.

Bottom line:  Adjustment of Status (Green Card) applications became much more complicated with the new public charge rule.  The application requires submitting more supporting documents than before.  The documents must be carefully selected and reviewed before submitting to the USCIS.  It will also make the process longer because it will take time to gather all relevant information and evidence (for example, credit history and credit score, proof of enrollment in US health insurance, policy coverage statements).

Please contact us for consultation to make sure that you are complying with a new rule and to avoid delays or even denials of your green card application! We will evaluate your case and determine whether the positive factors in your case outweigh the negative factors, and we will work with you on making your case stronger.

[1] Those who apply for a green card abroad, must file a new Form DS-5540 which also includes questions about applicant’s income, assets and liabilities, health insurance coverage, household size and applicant’s education and job training skills.