Public Charge

*Updated November 20, 2019*

The information on this page does not, and is not intended to, constitute as legal advice. Instead, all content below is provided for general informational purposes only.

Quick summary on the latest public charge updates (NEW)

FAQ for service providers and case managers (NEW)

Links to more resources and our partners

How the City of Seattle has opposed the public charge rule since the beginning

 

Current Status of the "Public Charge" Issue for Immigrants

The new U.S. Department of Homeland Security (DHS) public charge rule was scheduled to take effect on October 15, 2019. Because of three nationwide preliminary injunctions (including one in the state of Washington) from nine lawsuits, the new rule is temporarily NOT in effect. The rule would have applied to people applying for green cards in the United States (also known as "adjustment of status") or seeking extensions or change of stay from a nonimmigrant visa.

The national Protect Immigrant Families Coalition (PIF) has this helpful document in English and in Spanish that can help you decide whether the current public charge rule impacts you. See the column on the right for other translated versions.

Many advocates recommend that families should continue to use the services for which they are eligible for. However, each immigration situation is unique.

The Office of Immigrant and Refugee Affairs (OIRA) recommends that if you are uncertain about your status or a family member's status and/or use of benefits, you should speak with an immigration attorney or Department of Justice (DOJ)-accredited representative. You may be able to find a lawyer through the American Immigration Lawyers Association here. You can find the nearest DOJ-accredited organization here.

See the FAQ below for more detailed information.

 

Public Charge FAQ for Service Providers & Case Managers (who are not Lawyers)

DISCLAIMER:
The new Department of Homeland Security (DHS) public charge rule is temporarily NOT in effect.
However, this FAQ or "Frequently Asked Questions" section contains general information about both the old DHS rule and the new DHS rule. As of November 4, 2019, the old rule is the rule that is in effect because of three nationwide preliminary injunctions from nine lawsuits. Please check back here often for updates. Additional court hearings will occur based on the issues in the litigation.

The content in this FAQ is not legal advice. Each immigration situation is unique. Thus, the Office of Immigrant and Refugee Affairs recommends that if you know someone who has questions about their status or a family member's status and/or use of benefits, they should speak with an immigration attorney or Department of Justice (DOJ)-accredited representative. They may be able to find a lawyer through the American Immigration Lawyers Association here. You can find the nearest DOJ-accredited organization here.

The ACLU of Washington and PIF-WA also created this English-language public charge handout for immigrants.

  1. What is a "public charge?"
    Under current law, "public charge" is a reason to deny a green card or deport someone who is primarily dependent on the government to meet their basic needs. However, receipt of public benefits alone is not enough to be a public charge. The immigration officer must also consider additional factors or the "totality of circumstances" to decide if a person is or is likely to become a public charge. Public charge does not apply to some categories of applicants such as asylees, refugees, DACA and TPS applicants, applicants for U and T visas, or adjustment of status related to any of those statuses. Most people affected by public charge are being sponsored by a family member, some employers, and visa lottery winners.

  2. When does the federal government determine if you are likely to become a public charge?
    The federal government uses the public charge test when a person applies for a visa or green card to enter the U.S. or when a person who is already living in the U.S. applies to become a green card holder, among other circumstances.

    Whether this process takes place in the U.S. or at a U.S. consulate, the immigration officer will review information in all forms submitted and supporting evidence, and he/she will interview the applicant. Under current law, the petitioner/sponsor must file an affidavit of support and provide financial information.
     
    A public charge review is not involved when applying for naturalization unless an applicant has returned from a trip abroad of more than 180 days and received public benefits within five years of that date.


  3. How does the federal government decide if someone is likely to become a public charge or is already a public charge?
    Under both the old and the new rules, the public charge decision is based on two main factors.

    (i) The immigration officer conducts a "totality of circumstances" test. This test examines the applicant's age, health, family status, assets, resources, financial status, education, and skills. In other words, the government must look at the individual's entire circumstances as a whole to decide if they are likely to depend on public benefits in the future.

    (ii) The immigration officer also wants to know what public assistance programs the immigrant has received. But this is only one factor to consider under the current law. The officer cannot rely on one fact or factor alone.

  4. How does the new public charge rule differ from the old rule?
    (i) The new "totality of circumstances" test adds specific standards to each of the aforementioned factors (age, health, family status, etc.), including a minimum income threshold, consideration of credit scores and history, and even an English proficiency standard.

    (ii) Under the old rule, the public benefits considered include means-tested cash benefits like SSI (Supplemental Security Income), TANF (Temporary Assistance to Needy Families), and state means-tested cash benefits (general assistance) plus government-sponsored long-term institutional care (like a nursing home or mental health facility usually covered by Medicaid).

    The new rule would have added a few more public benefits programs for a total of nine, if and only if received for 12 months within the last 3 years, and only if received on or after October 15, 2019 by the immigrant applicant, not their family members. The benefits below were added to new rule:

    1) *Supplemental Nutrition Assistance Program (SNAP), formerly called "Food Stamps".

    2) *Subsidized Housing such as: a) federal rental housing assistance, b) Section 8 housing vouchers, c) housing funded by Project Based Section 8.

    (iii) The new DHS public charge rule does not just apply to people who have received public benefits. The rule would also apply to people with low incomes who have never received public benefits. For example, a family or household whose income is less than 150% below the Federal Poverty Guidelines would have their income counted as a "heavily weighted" negative factor among all factors to consider, while a family income greater than 250% of the Federal Poverty Guidelines would be a "heavily weighted" positive factor among all factors.

    (iv) The new DHS public charge rule would create a new form for the immigrant applicant that would place more emphasis on that person's financial resources. The petitioner/sponsor's affidavit of support mentioned above (see Question 2) would be given less weight and would be just another factor to consider.

  5. Under the old rule and the new rule, what programs are excluded from the new criteria to be considered a public charge?
    Children's Health Insurance Program (CHIP); disaster relief; emergency medical assistance; Affordable Care Act/marketplace/exchange health plans; state, local, or tribal programs (other than cash assistance); benefits received by the immigrant's family members; or any other benefit not specifically listed in the final rule. Benefits not listed under Question 4, such as education, child development, and employment and job training programs are also excluded.

    *Under both the new DHS rule and the old DHS rule, any local City of Seattle program such as the Utility Discount Program and Seattle Preschool Program will NOT be considered.*

    Go here to see the many Seattle programs that immigrants may be eligible for, regardless of their immigration status and regardless of the public charge rule.

  6. What if someone already has a green card and is receiving benefits?
    Under both the old DHS public charge rule and the new DHS rule, an immigrant with a green card will not have their green card taken away just because they, their child, or other family members lawfully use benefits. And, they cannot be denied U.S. citizenship for lawfully receiving benefits. However, permanent residents are barred from a few public benefit programs for five years from when they received their green cards or since returning from a trip abroad of 180 days or more.

    To be deported for public charge, the federal benefits agency must demand repayment and the immigrant or sponsor must refuse to repay it. This is very rare, but the U.S. Department of Justice plans to issue new rules about this in the future.

  7. What if an immigrant's family member(s) use health care, nutrition, education, or other programs?
    Generally, the federal government will only consider benefits received by the individual applicant, not their family members. Under both the old rule and the new rule, the federal government will NOT consider the children's use of non-cash benefits (such as health insurance or food stamps) in their application for a green card or to enter the U.S. However, the number of children the applicant has, including U.S. citizen children, may be considered as part of the totality of circumstances assessment in the public charge determination, because it affects household size and household income.

    If someone you know has questions about their status or use of benefits, they should speak with an immigration attorney or DOJ-accredited representative.

  8. What if an immigrant has used these benefits in the past and is no longer receiving benefits?
    Under both the old rule and the new rule, the public charge test is forward-looking, which means that the test is not solely based on what happened in the past. If an immigrant previously received benefits, but their situation has changed, they may be able to show that they will not need those services now or in the future (for example, if they have a new job). The immigration officer must look at the totality of circumstances and that can include circumstances that have recently changed.

    If someone you know has questions about their status or use of benefits, they should speak with an immigration attorney or DOJ-accredited representative.
     
  9. Does public charge apply to all immigrants?
    No! Under both the old rule and the new rule, the public charge test is NOT applied to green card holders in their applications to become U.S. citizens. Also, certain humanitarian immigrants are either exempt from the public charge test or can qualify for a public charge waiver. This includes:
    • Refugees
    • Asylees (immigrants who are applying for or were granted asylum)
    • People applying for a green card under the Violence Against Women Act (VAWA)
    • People who have or are applying for U visas or T visas
    • Children seeking Special Immigrant Juvenile Status
    • There are also several country-specific programs for which public charge does not apply. Again, consult with an immigration attorney or DOJ-accredited representative.
    If an immigrant falls under any of these categories, they can use ANY benefits for which they are eligible. This includes cash aid, health care, food programs, and other non-cash programs.

  10. What about U.S. citizens receiving benefits?
    Public charge does NOT apply to U.S. citizens. If someone is a U.S. citizen receiving benefits, they should continue receiving the benefits for which they are eligible.

  11. Should someone stop the benefits they are receiving now?
    NO! If someone you know or a family you know is receiving benefits to go to the doctor, pay for food, or pay rent, they do not need to stop their benefits. The new rule is NOT in effect. Even if the courts allow the rule to go into effect later, the rule will go into effect at a later date and will NOT be applied retroactively, which means the government will NOT consider a person's use of a newly-added benefit (e.g., including non-emergency Medicaid for non-pregnant adults, SNAP, and federal rental housing assistance) prior to the effective date of the rule.

    However, for benefits that are already part of the old rule's public charge determination, such as TANF, SSI, and long-term institutionalization, the government will consider usage prior to the effective date of the rule.

    If someone you know has questions about their status or use of benefits, they should speak with an immigration attorney or DOJ-accredited representative.
     
  12. What if an immigrant has received a benefit that is not listed?
    Only the benefits listed in the final rule (see Question 4) may be considered. Benefits not listed, such as education, child development, free and reduced school lunch, and employment and job training programs, are not part of the public charge test.

    *Under both the new rule and the old rule, any local City of Seattle program such as the Utility Discount Program and Seattle Preschool Program will not be considered.*

    Go here to see the many Seattle programs that immigrants may be eligible for, regardless of their immigration status and regardless of the public charge rule.

  13. Can someone be deported as a public charge?
    See Question #6.

  14. How would the new DHS public charge rule affect individuals with disabilities?
    Under the new rule, a person's health is one of many factors the government would consider in determining whether a person is likely to become a public charge. This includes physical or mental health conditions that could limit a person's ability to work, attend school, or care for themselves. However, the new rule states that changes will not apply to benefits (other than cash assistance or long-term care) that they have received before the rule is final. But, the person may need to show enough financial resources or unsubsidized health insurance to cover "reasonably foreseeable" medical expenses.

    If someone you know has questions about their status or use of benefits, they should speak with an immigration attorney or DOJ-accredited representative.
     
  15. Does the new rule apply to green card renewals if a person is receiving public benefits?
    No. Under both the old rule and the new rule, the public charge test does not apply when someone renews a green card. The renewal application cannot be denied based on the use of programs someone is eligible for.

  16. Can naturalized U.S. citizens lose their citizenship if they use programs like Medicaid or SNAP/Food Stamps?
    No! U.S. citizens cannot lose their citizenship based on their lawful use of public benefits.

  17. Are the rules the same if I or a family member apply for an immigrant visa at a US consulate abroad?
    This FAQ has exclusively focused on the Department of Homeland Security (DHS) public charge rule. The State Department (DOS) also issued a public charge rule to conform to the DHS rule. However, this DOS rule is on hold for now. Despite this, since 2018, DOS has been using a different policy to interpret public charge, and it is actually more restrictive because the consular officer will examine benefits used by family members and will give more scrutiny to the sponsors' affidavits of support and joint sponsors.

    Anyone applying for an "immigrant visa" (green card) abroad, or who plans to later go abroad to get their green card should consult with an immigration attorney or DOJ-accredited representative.

    For more information on finding a qualified legal representative and how to avoid scams, please also refer to stopnotariofraud.org.

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Links to Resources

Does public charge apply to me?

General Information (National)

Train the Trainer (for advocates and service providers)

Legal

Health Care

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Partners

Children's Alliance | Cities for Action | Entre Hermanos | Food Lifeline | Northwest Harvest | Northwest Health Law Advocates | Northwest Immigrant Rights Project | OneAmerica | Protecting Immigrant Families, Advancing Our Future Coalition

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City of Seattle Actions Opposing the Public Charge Rule

October 11, 2019
Just a few days before the new rule was set to go into effect, a federal judge in Eastern Washington issued a nationwide preliminary injunction while the lawsuit brought by Washington State Attorney General Bob Ferguson and the 13-state coalition progresses. The Office of Immigrant and Refugee Affairs assisted the AG's Office in building their case.

August 14, 2019
Washington State Attorney General Bob Ferguson leads a 13-state coalition (Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Rhode Island, and Washington State) in filing the second of nine total lawsuits against the new public charge rule. The Office of Immigrant and Refugee Affairs assisted the AG's Office in building their case. The lawsuit also requests a preliminary injunction.

August 12, 2019
Mayor Jenny A. Durkan and City Attorney Pete Holmes released a statement condemning the Trump administration's implementation of their final "public charge" rule.

Image of 1,100 public comments from Seattle.December 10, 2018
The public comment period for the public charge Notice of Proposed Rulemaking (NPRM) closes. Individuals across the U.S. submitted 216,102 comments on the proposed rule, far surpassing the original goal of 100,000 comments. OIRA and the Protecting Immigrant Families (PIF) Washington Coalition worked together to inform community members about this proposal and gathered over 1,100 comments, which helped PIF-WA reach their goal of 4,000 public comments.

Mayor Jenny A. Durkan and Seattle City Council submitted a public comment opposed to the rule on behalf of the City of Seattle. She also signed onto a multi-city legal comment drafted by the City of Chicago and City of New York. The mayor also signed onto Washington State Attorney General Bob Ferguson's public comment with King County Executive Dow Constantine. Multiple other City departments also submitted public comments, including the Office of Immigrant and Refugee Affairs, Office of Sustainability and Environment, and Office of Housing.

October 10, 2018
The public charge Notice of Proposed Rulemaking (NPRM) is posted to the Federal Register. The City of Seattle signs onto a statement with over 1,500 other cities and organizations opposing the proposed public charge regulation and is participating in the nationwide goal of 100,000 public comments to the Federal Register. The goal for the state of Washington is 4,000 public comments. The comment period started this day and closed on Monday, December 10, 2018.

October 5, 2018
The public charge Notice of Proposed Rulemaking (NPRM) is posted for public inspection. This is the step before it is officially published in the Federal Register and the comment period starts. It indicates that the NPRM will be published in the Federal Register on Wednesday, October 10.

October 3, 2018
Mayor Jenny A. Durkan signs onto a U.S. Conference of Mayor's statement opposing the proposed change to the public charge immigration rule.

September 25, 2018
The City of Seattle joins with over 1,000 organizations nationwide to oppose the proposed change to the public charge immigration rule. The Office of Immigrant and Refugee Affairs also joins with the Protecting Immigrant Families Washington Coalition in speaking out against the proposed rule.

September 22, 2018
The Department of Homeland Security releases a press statement and a link to the 447-page draft of the proposed public charge rule. The Office of Immigrant and Refugee Affairs joins with community members in analyzing the draft and strategizing on next steps.

June 13, 2018
With assistance from OIRA, the local Protecting Immigrant Families Washington Coalition (a network of Washington state-based organizations working on opposing the public charge issue) organizes an Ethnic Media Roundtable to inform outlets serving immigrant and refugee communities about the public charge issue and how they can ensure that accurate information is released to communities.

June 11, 2018
Mayor Jenny A. Durkan co-sponsors a U.S. Conference of Mayors resolution on opposing the public charge rule change. It passes unanimously.

May 9, 2018
Based on the mayor's request for a meeting, the Mayor's Office with the City of Seattle Office of Immigrant and Refugee Affairs and invited community members, including representatives from Korean Women's AssociationNorthwest HarvestOneAmerica, Public Health - Seattle and King County, and Washington State Association of Head Start and ECEAP (Early Childhood Education and Assistance Program) meet with OMB representatives and shared arguments against the public charge NPRM.

April 16, 2018
Mayor Jenny A. Durkan sends a letter to federal Office of Management and Budget Office of Information and Regulatory Affairs (OMB) requesting a meeting on the public charge Notice of Proposed Rulemaking (NPRM) currently under their review.

March 28, 2018
The Washington Post obtains a leaked Department of Homeland Security draft of a proposal that would expand the definition of "public charge" for immigrants attempting to legally apply for a green card/lawful permanent residency. Again, local service providers reported another surge of immigrants requesting to be taken off of safety net programs that they legally qualify for.

January 31, 2017
The Washington Post obtains a leaked Trump executive order detailing the administration's plans to expand the definition of "public charge" for immigrants attempting to legally apply for a green card/lawful permanent residency. Anecdotally, Seattle-based service providers started reporting stories of immigrants requesting to be taken off of insurance plans and other social programs that they legally qualify for.

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Banner photo credit: Wikimedia Commons.