Deciphering the concept of
public charge: everything you need
know.
When a person is considered a public charge, he or she may be denied entry or permanent residence in the United States.
Public charge is a rule for some people applying for lawful permanent residence (Green Card) or certain other visas to enter the U.S. It mainly affects people applying for residency with a family petition. Someone who relies too much on public benefits may be considered a “public charge”.
Being considered a public charge may affect eligibility for certain benefits and in order to demonstrate that you are financially self-sufficient you need to show certain proofs
such as:
- Work history and letter of employment.
- Savings or financial assets.
- Financial endorsement from a citizen or legal resident.
- Letter from a financial sponsor.
- Proof of regular income, such as tax returns.
- Proof of education or training that enhances employment prospects.
Immigration officers evaluate all of your circumstances to determine if you may represent a public charge to the state. Some aspects to consider are age, health, income, education and professional skills. In addition, positive and negative factors may be weighed.
Which governmental benefits are considered by the public charge law and which are not?
Some of the governmental aids and/or benefits that may be considered by the public charge law are:
- Medicaid.
- Nutritional assistance program (such as “food stamps” or “food stamps”).
- Cash assistance for income maintenance:
- Supplemental Security Income (SSI).
- Temporary Assistance for Needy Families (TANF).
- General state compensation or general assistance
- Housing assistance (such as Section 8 and Public Housing).
- Long-term medical care in an institution (nursing home, government-paid psychiatric hospital, etc.).
However, being a recipient of government assistance does not immediately make you a public charge. Therefore, it is important to consult with an immigration attorney who can advise you as to whether or not your case may be considered a public charge.
Being a beneficiary of some government assistance does not immediately make you a public charge. That is why some government benefits are not considered by law to be public charge, among them:
- Emergency Medicaid, under age 21, pregnant women and new mothers.
- The Special Supplemental Nutrition Program for Women, Infants and Children (WIC).
- Children’s Health Insurance Program (CHIP).
- Health Marketplace (Obamacare).
- AIDS Drug Assistance Program (ADAP).
- Premium tax credit under the ACA.
- Earned Income Tax Credit (EITC) or Child Tax Credit.
- COVID-19 testing, treatment & vaccination.
- Childcare assistance.
- Disaster relief.
- Food waivers.
- School lunches
Who are affected by the Public Charge Rule?
The rule does not affect:
- U.S. citizens.
- Lawful permanent residents (Green Card holders) applying for citizenship or renewal of their cards.
- Refugees: persons applying for refugee status, or a Green Card as a refugee.
- Asylees: persons applying for asylum, or a Green Card as an asylee.
- TPS: persons initially applying or seeking to re-register for temporary protected status.
- DACA: persons applying for renewal of the Deferred Action for Childhood Arrivals program.
- SIJS: persons applying for Special Immigrant Juvenile Special Immigrant status, or
individuals who have SIJS and are applying for a Green Card. - U Visa: persons applying for a U visa or who have a U visa and are applying for a Green Card.
- T Visa: persons applying for a T visa; and persons holding a T visa and applying for a Green Card.
- VAWA: persons protected under the Violence Against Women Act (VAWA) and
persons with VAWA who are applying for a Green Card. - Persons applying for suspension of deportation or benefits under the Convention Against Torture.
- Cubans applying for adjustment of status under the Cuban Adjustment Act.
- Amerasians applying to enter the U.S.
- SIVs: Afghan and Iraqi interpreters and translators applying for special immigrant visas.
- Registration: Individuals applying for registration (have lived in the U.S. since before January 1, 1972).
- NACARA: persons applying for benefits under the Nicaraguan Adjustment and Central American Relief Act.
- HRIFA: persons applying for benefits under the Haitian Refugee Immigration Fairness Act.
Haitian Refugee Immigration Fairness Act (HRIFA). - Individuals with Lautenberg entry permits.
- Certain other “humanitarian” immigrants
The rule affects:
- Immigrants who apply for a Green Card (lawful permanent residence).
(People who have a U or T visa and people with VAWA are exempt). - Lawful permanent residents who leave the U.S. for six months or more at a time and want to return to the U.S.
- Persons considering entering the U.S. temporarily as “nonimmigrants.”
5 Important things to know about public charging.
IF YOU ARE A PERMANENT RESIDENT:
1. Generally, persons who are permanent residents are not affected by the public charge.
2. There is no public charge test for renewing a permanent resident card.
3. Permanent residents cannot be deported simply for using public benefits. It is very difficult for the government to deport a permanent resident for being a “public charge”.
4. Public charge may apply if a permanent resident leaves the United States for more than 180 days. It is important for permanent residents to speak with a reputable immigration attorney or accredited representative before leaving the U.S. for more than 180 days.
5. There is no public charge test when applying for citizenship. In fact, receiving certain benefits may qualify a person for a fee waiver when applying for citizenship. Using public benefits for which you do not qualify or receiving funds while out of the country could cause problems. Review your public benefits history with a trusted legal representative before applying for citizenship if you are concerned.
IF YOU ARE UNDOCUMENTED (WITHOUT LEGAL STATUS):
1. A family member’s use of public benefits is not considered in their public charge test and their family must use all benefits for which they are eligible.
2. With few exceptions, your personal information will not be shared with ICE when you register for a benefit because there are laws and regulations that protect immigrants.
3. If you are not eligible to apply for permanent residence, the public charge does not apply to you. The public charge only affects people who apply for permanent residence through a relative or apply for certain visas to enter the United States. Even if you plan to apply for permanent residence many years in the future, there is probably no reason to give up important benefits now.
4. Many immigration applications do not have a public charge test. For example, there is no public charge test for applying for:
- Asylum U Visa (for victims of certain crimes)
- T Visa (for victims of human trafficking)
- VAWA (for certain victims of domesticviolence)
- SIJS (for abused, neglected, or abandoned children)
- DACA
- TPS
5. Anyone wishing to file an immigration application should work with a trusted immigration attorney or accredited representative to prepare a complete application.
IF YOU WANT TO SPONSOR A FAMILY MEMBER TO COME TO THE UNITED STATES:
1. If you are a permanent resident, please note that there is no public charge test to renew a permanent resident card or to remove the conditions of your permanent residence (for those with a 2-year permanent resident card).
2. If you want to become a U.S. citizen to sponsor a relative, there is no public charge test to naturalize. You can become a U.S. citizen even if you have used benefits or need a fee waiver for your application.
3. If you are a U.S. citizen or permanent resident, you can sponsor certain members of your family and continue to use public benefits. If you sponsor a family member, your relative will have the public charge test, not you.
4. If you are sponsoring a family member, an immigration officer will consider aspects such as your income, assets, and whether you have used public benefits to assess your ability to support the family member you are sponsoring.
5. If you are sponsoring a family member and do not have enough income to support your family member, you can add a second sponsor who has enough income to support the family member. It is important to review your financial documentation with a trusted immigration attorney or accredited representative to prepare a complete application and decide if a second sponsor is needed.