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Public Charge (Immigrant Rights)

Last Modified: 08/31/2020

If you are applying for immigration status as a lawful permanent resident or to enter the U.S. on a visa, you may be required to pass a “public charge” test. The Department of Homeland Security (DHS) is trying to change the rules about what criteria they look at in determining who is a public charge. 

As of July 29, 2020, the implementation, application, and enforcement of the new rule is on hold so long as there is a declared national emergency related to the COVID-19 Pandemic. 

Immigration officials at USCIS have announced that immigrants can seek testing, treatment, and prevention of COVID-19 without fearing immigration consequences due to public charge. 

Please read below for information about the current rule and the changes DHS is trying to make.

WHAT ARE YOUR RIGHTS?

The Department of Homeland Security (DHS) defines public charge as a person who receives one or more public benefits for more than 12 months within any 36-month period. Each benefit’s time is counted, so if you receive two benefits in the same month it would equal two months of benefit use.

DHS will consider all of your circumstances before they make a final decision. Other factors immigration officials look at include your age, income, health, education or skills (including English language skills), family status, your sponsor’s affidavit of support, and whether you have used certain public benefit programs.

The following situations are examples of ones that are given negative weight, meaning they count against you:

  • Income under 125% of the Federal Poverty Level;
  • Age under 18 or over 61;
  • Lack of education or skills; and
  • Health conditions that could affect ability to work or go to school.

The Department of Homeland Security (DHS) has been trying to implement a new rule regarding public charge. This new rule, if allowed to go into effect, will change the definition of public charge and the criteria immigration officials look at when determining if you pass the public charge test. 

The current DHS rule defines public charge as “an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either receipt of pubic cash assistance for income maintenance or institutionalization for long-term care at government expense.”

The proposed rule would define public charge as a person who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period. DHS looks at the totality of a person’s circumstances in making a final determination. Other factors immigration officials consider include a person’s age, income, health, education or skills (including English language skills), family status, their sponsor’s affidavit of support, and whether the person has used certain public benefit programs.

The public charge test only applies to immigrants in three categories:

  • Non-citizens applying to be “admitted,” meaning applying for a visa;
  • Non-citizens applying to adjust their status to become Lawful Permanent Resident (green card holder); and
  • Lawful Permanent Residents who leave the U.S. for 180 consecutive days and want to come back.

This is would NOT change under DHS’s proposed rule.

The public charge test does not apply to:

  • Lawful Permanent Residents (green card holders) applying to become citizens
  • Refugees
  • Asylees
  • Victims of trafficking and other serious crimes (T Visa, U Visa, VAWA)
  • Special Immigrant Juveniles
  • Certain parolees
  • Some other humanitarian immigrants

This is would NOT change under DHS’s proposed rule.

Under current law, only two (2) categories of public benefit programs count towards determining if you pass the public charge test:

  • Cash assistance such as TANF and SSI
  • Long-term care at government expense such as nursing home or inpatient mental health care

Under the proposed rule, three (3) new categories would be added:

  • SNAP (food stamps)
  • Medicaid – There is an exception for Emergency Medicaid for Aliens and Medicaid for children under 21 and pregnant women.
  • Housing assistance such as public housing, Section 8, and rental assistance

Most people who are subject to the new rule are not eligible for the above listed benefits.

As of July 29, 2020, the implementation, application, and enforcement of the new rule is on hold so long as there is a declared national emergency related to the COVID-19 Pandemic.

Examples of benefits that are not considered include:

  • Benefits not listed in the rule
  • Benefits received by a family member
  • Benefits received in another country 
  • Benefits other than cash assistance and long-term care received prior to February 24, 2020
  • Benefits received by active duty service members, their spouses and children
  • Non-cash assistance state and local programs 
  • Homeless or domestic violence shelters
  • Supplemental Nutrition Program for Women, Infants, and Children (WIC)
  • Free or reduced school breakfast or lunch programs
  • Energy assistance
  • Federal Earned Income Tax Credits and Federal Child Tax Credits
  • Student Loans.

WHAT DO YOU NEED TO DO?

Find Out if You are Subject to the Public Charge Test BEFORE Applying for Any Type of Immigration Status

There are resources to help you determine if the public charge test applies to you or your family:

The best way to know if you are subject to the public charge test is to speak with a lawyer who specializes in immigration about your specific set of circumstances. CLSMF’s HELPline attorneys do not give advice regarding immigration matters. To find an attorney who may be able to assist, contact the Florida Bar Referral Service online or by phone at 800-342-8011.

 

WHAT TO CONSIDER BEFORE TAKING ACTION?

Next Steps

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