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Rule Change in ‘Public Charge’ Affects Some Immigrants Applying for Lawful Permanent Residence

The Public Charge rule is now in effect, but legal challenges to the rule will continue. Please watch this page for additional updates since there are still court cases pending and the rule could eventually be overturned.

The U.S. Department of Homeland Security (DHS) published a new rule on “public charge,” the term for people considered likely to become dependent on the government for support. The new rule went into effect February 24, 2020. The rule changes how the government determines whether you will be a public charge if you seek to adjust your status to legal permanent resident (in other words, if you apply for a green card), or if you seek to extend or change your nonimmigrant status. Overall, the rule creates a “wealth test” for many people seeking to adjust, change, or extend their immigration status.

As was the case before, DHS will look at your total situation in deciding whether you’ll become a “public charge.” However, the new rule may make it more difficult for you to obtain legal permanent resident (LPR) status or extend or change your nonimmigrant status if, for example: (1) your household income is below approximately 250% of the federal poverty guidelines ($64,375 for a family of four); (2) you are not fluent in English; (3) you are disabled or have serious health problem(s); (4) you are under 18 or over 61 years old; and/or (5) you have a limited educational background, job skills, and/or prior job history. 

You may also be considered likely to become a public charge if you receive more than 12 months of public benefits during a 36-month period. One of the new rule’s biggest changes is to expand the types of public benefits that can be used to trigger a public charge finding. Before, the only public benefits considered were cash assistance or long-term institutionalized care. Now, the government can also look at your use of food stamps (SNAP), subsidized housing, and medical insurance.

All of these changes will make it easier for the government to deny applications for adjustment, extension, and change of status, especially for clients who are eligible for representation by Legal Services programs. The rule will make it harder for members of low-income families, disabled persons, and others to get green cards. 

When will the new rule be effective?

The new rule is in effect now, but there are legal challenges in the courts. It’s possible that the new rule will be overturned in the future, but it is currently in effect.

Does the new rule on public charge apply to anyone applyingfor adjustment of status?

The public charge test will continue to apply to people seeking adjustment of status through an employment or family-based petition. The public charge rule has not applied to adjustment of status requests based on humanitarian grounds, and this will not change. In other words, you are exempt from being considered a public charge—even if you have low-income or you receive public benefits—if you are applying for adjustment of status based on: being a refugee or an asylee, being a T or U nonimmigrant with an approved self-petition under the Violence Against Women Act (VAWA), or having an approved special immigrant juvenile application.

What types of public benefits will now be considered?

Cash benefits, such as Temporary Assistance to Needy Families (TANF), General Assistance (GA), or Supplemental Security Income (SSI) will be considered just as they were under the previous rule on public charge. Long-term institutional care paid by the government (for example, Medicaid to cover a stay at a nursing home) will also continue to be considered.

Under the new rule, the government will be able to look at use of SNAP benefits (also known as “food stamps.”), medical coverage (including most forms of Medicaid), and housing assistance (such as voucher and project-based Section 8 benefits) as part of the public charge assessment, if these benefits are used on or after October 15, 2019.

What if my child receives public benefits?

Public benefits programs used by your U.S. citizen children cannot be used against you in making a public charge determination (with the possible exception of cash assistance that constitutes your family’s primary source of income). Medicaid/FamilyCare received for children under age 21 will not be used against them.

What types of public benefits will not be considered?

The following public benefits programs will not be considered in making a public charge determination:

  • Disaster relief
  • Emergency medical assistance
  • Medicaid/NJ FamilyCare received by applicants while under age 21 or while pregnant
  • Program for Women and Infant Children (WIC).

Note: This list is not exhaustive.

What other factors will be considered in addition to the receipt of public benefits?

Aside from the use of public benefits, additional factors the government can consider for a public charge assessment remain the same as before: financial status, household size, age, level of education, vocational skills, and employment history, among others. The difference is the relative weight given to each factor, whether positive or negative.

Negative factors include:

  • Being under age 18 or over age 61,
  • Limited English proficiency,
  • A physical or mental health condition that adversely impacts your ability to work,
  • Lack of private health insurance, and/or
  • Limited educational background, job skills, and/or steady work history.

Positive factors include:

  • Being between ages 18 and 61,
  • Having private health insurance,
  • No physical or mental health condition that adversely impacts your ability to work,
  • Being the primary caregiver for a child or elderly relative, and/or
  • Extensive education, job skills, and/or steady work history.

What about the income of my sponsor and family income?

As before, if you are seeking a green card through a family-based petition, you will be required to show that your family sponsor has an income of more than 125% of the federal poverty guidelines. For a family of four, your income must be at least $32,187. However, if you have a family income above this amount, the government may still deny your application. Under the new rule on public charge, a household income of less than 250% of the federal poverty guidelines will be a heavily weighted negative factor. The income for a family of four would need to be more than $64,375.

What about an affidavit of support? 

You will still need to have an affidavit of support (U.S. Citizenship and Immigration Service Form I-864) submitted by the family member who is sponsoring you to document your family income.

In addition, you will now also need to complete a declaration of self-sufficiency, USCIS form I-944 (available by mid-October), as the applicant for adjustment of status.  Both forms will require much more documentation than was previously required, such as tax returns, credit reports, bank statements, language certifications, etc.

Will the new rule on public charge have any effect if I am already a green card holder (an LPR)?

If you are already an LPR, the new rule on public charge will impact you only if you return to the United States after being outside the country for more than 180 days. If you plan on being out of the United States for a long time, consult an immigration attorney prior to departing.

What about renewing my green card or my eligibility for naturalization?

At this time, the public charge rule does not apply if you are seeking to renew your 10-year green card or you are filing for naturalization. If you are an LPR and otherwise eligible to apply for naturalization, no public charge issue will affect your ability to do so.

If you are concerned about the effect of the new public charge rule on your immigration status or potential immigration applications, consult with an attorney before applying for immigration status or withdrawing from any public assistance program. For legal advice, you can contact the LSNJLAWSM, Legal Services of New Jersey’s toll-free hotline at 1-888-LSNJ-LAW (1-888-576-5529).    ​​​​​​​​​​​​​​​​