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As of March 9, 2021, the long-standing 1999 field guidance is once again the public charge policy that guides immigration officials with the Department of Homeland Security (DHS). The stricter 2019 rule issued by DHS under the former Trump administration is no longer in effect. The 1999 field guidance makes it clear that the use of most public benefits programs— such as health, nutrition, and housing programs—will not impact an individual’s ability to obtain immigration status.

What is public charge?

A public charge is a person who is primarily dependent on the government for support, either by receiving cash assistance for income maintenance, or by being institutionalized for long-term care at government expense. As explained more below, this will primarily affect you only if you used to receive or are currently receiving WorkFirst New Jersey Temporary Assistance to Needy Families (TANF) or General Assistance (GA) or Supplemental Security Income (SSI).

If DHS determines that a person is likely to become a public charge in the future, they can deny permission to come to the U.S. or deny an application for a green card, more formally known as lawful permanent resident status (LPR).

Who does public charge apply to?

Public charge primarily affects family-based immigrants (e.g., a spouse petitioning for a spouse) who apply for green cards or entry into the U.S. Most other categories of immigrants are exempt from public charge determinations.

For example, there is no public charge test for the following categories of immigrants:

• Asylees
• Refugees
• U or T visa applicants and holders (human trafficking or victims of crimes)
• VAWA self-petitioner (Violence Against Women Act)
• People seeking or granted SIJS (Special Immigrant Juvenile Status).

There is no public charge test when an immigrant applies for the following:

• U.S. citizenship
• Green card renewal
• Asylum, DACA (Deferred Action for Childhood Arrivals), TPS (Temporary Protected Status), or DED (Deferred Enforced Departure) initial applications and renewals.

Many more immigration categories are also exempt so it is important to seek legal advice in determining whether public charge will apply to you if you do not fit into one of the above categories.

Which benefits are considered?

Only benefits received by the person applying for lawful permanent resident status are considered. DHS does not consider benefits used by other family or household members, unless the benefits received are the sole source of income for the family. Most people applying for family-based green cards are ineligible for these programs. If public charge applies to an individual, only the following benefits will be considered in a public charge test of inadmissibility:

• Monthly cash assistance intended to support a person, including Supplemental Security Income (SSI), Work First New Jersey Temporary Assistance for Needy Families (TANF), and state-based cash assistance programs like the WorkFirst New Jersey or the General Assistance (GA) program.
• Long-term institutional care at government expense.

Which benefits are not considered in a public charge test?

• NJ FamilyCare (Medicaid, the Children’s Health Insurance Program), Emergency Medicaid, state and local health care programs (for services other than long-term care), other health coverage, including subsidies for insurance purchased through Healthcare.gov, and other healthcare exchanges.
• Nutrition programs, such as the Supplemental Nutrition Assistance Program (SNAP), Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), school lunch programs, and food banks.
• Subsidized housing programs, such as Section 8 and Public Housing.
• COVID-related supports, such as Pandemic Electronic Benefits Transfer (P-EBT), stimulus payments, child tax credits, emergency rental assistance, and more.
• COVID-related testing, prevention and treatment.
• Other state-based, noncash assistance programs.
• Cash benefits based on work or earnings, including Social Security, retirement, pensions, and veterans benefits.

Even if public charge is considered, DHS will consider the totality of the circumstances

If the public charge test applies to an individual, DHS officials will look at all of their circumstances when reviewing their application, including their affidavit of support. An affidavit of support is a contract that a sponsor—usually a family member—signs to accept financial responsibility for an individual who is moving permanently to the U.S. Even if someone has used the programs above, immigration officials will look at the individual’s whole situation to decide if he or she is likely to become a public charge in the future. Past use of public benefits is just one element of the public charge test of inadmissibility,  and can be outweighed by positive factors. The public charge test also considers:

• Income 
• Employment
• Education
• Health
• Family Status
• Affidavit of support (the income of the sponsor must be at least 125% of the federal poverty guidelines (see I-864P, 2021 HHS Poverty Guidelines for Affidavit of Support).

Get information and ask questions!

Before you decide to disenroll from any public benefits due to concerns over immigration status and public charge, we strongly recommend that you seek trusted legal advice. In many cases, the use of public benefits will not negatively impact your immigration status. If you need information or legal advice, contact the LSNJLAW^SM  Hotline at 1-888-LSNJ-LAW (1-888-576-5529). Or apply online.

You can find more information online (in multiple languages) at www.ProtectingImmigrantFamilies.org.

Adapted from materials provided by the Protecting Immigrant Families Campaign.​​​​​

This information last reviewed: Apr 28, 2021