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Public Charge (Immigrant Rights)

Last Modified: 08/03/2020

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 public charge test looks at whether you are likely to use certain government services in the future. In making this determination, immigration officials review all of your circumstances, including your age, income, health, education or skills (including English language skills), family status, sponsor’s affidavit of support, and whether you have used certain public benefit programs.

New public charge laws went into effect on Monday, February 24, 2020.

Under the new public charge laws, immigration officials look at new criteria to determine if you pass the public charge test and consider new public benefit programs when making their decision. Please read more in the sections below.

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. 

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 following situations are examples of ones that are given positive weight, meaning they help your case:

  • Income over 250% of the Federal Poverty Level;
  • Household assets to cover “any reasonable foreseeable medical costs”;
  • Having unsubsidized health insurance;
  • History of employment;
  • English proficiency; and
  • High school diploma or higher education.

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 a Lawful Permanent Resident (green card holder); and
  • Lawful Permanent Residents who leave the U.S. for 180 consecutive days and want to come back.

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 a Lawful Permanent Resident (green card holder); and
  • Lawful Permanent Residents who leave the U.S. for 180 consecutive days and want to come back.

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; and
  • Some other humanitarian immigrants.

The new Department of Homeland Security public charge rule went into effect on Monday, February 24, 2020. The new rule added new programs to the list of government benefits that can be considered in determining if a person is a public charge. 

The new list of programs that are considered:

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

For applications postmarked prior to February 24, 2020, only cash assistance and long-term care at government expense are considered. The other benefits are only considered when making the public charge determination for applications postmarked after that date.

Only the public benefits listed in the new rule, and seen in the section above, can be considered in a public charge determination. 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; and
  • 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 at 800-342-8011.

WHAT TO CONSIDER BEFORE TAKING ACTION?

Next Steps

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