Public Charge

Trump's Public Charge Rule Still in Place in Washington State

On Wednesday, July 29, 2020, a federal judge blocked the Department of Homeland Security and the Department of State from moving forward with plans to deny green cards to immigrants if they or a family member has received Medicaid, food stamps, or housing vouchers, even on a limited basis. However, on August 12, a 2nd Circuit judge ruled that this injunction will apply only within the states in the 2nd Circuit (New York, Connecticut and Vermont). For now, the DHS public charge regulations cannot be applied in those states, but can be applied elsewhere.

*Updated August 19, 2020*

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.

 

Current Status of the "Public Charge" Issue for Immigrants

In early February, the U.S. Supreme Court ruled in a 5-4 decision that the Trump administration's new "public charge" rule could go into effect, while lower courts continue to decide on the rule's legality. U.S. Citizenship and Information Services (USCIS) started implementing the public charge rule on Monday, February 24, 2020 in Washington state and most places nationwide.

However, on Wednesday, July 29, 2020, a federal Judge George B. Daniels of the U.S. District Court in Manhattan temporarily blocked the DHS and the DOS from moving forward with the Trump administration public charge rules. The first of these two orders bars the implementation, application, and enforcement of the DHS rule nationwide so long as there is a declared national emergency related to the COVID-19 pandemic. The second-order blocks the DOS rules, which made similar updates to the Foreign Affairs Manual (FAM) instructions and the Health Care Proclamation as the case goes forward.

But then, on Wednesday, August 12, 2020, the Second Circuit Court of Appeals limited a lower court nationwide injunction on the DHS public charge rule, which indicates that the rule is now barred only in Vermont, Connecticut, and New York. Therefore, the USCIS Trump public charge rule is still in effect in Washington state.

However, unlike the USCIS rule, the nationwide injunction against the Department of State's implementation of its public charge policy still remains in effect and has NOT been limited. This also stems from the July 29th district court ruling.

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 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. As of July 29, the Trump public charge rule has been temporarily blocked.

  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 citizenship 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?
    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). As of July 29, 2020, USCIS is currently using this 1999 public charge rule guidance.

    The new rule adds several public benefits programs to be considered (see below). Benefit use is likely to trigger a public charge designation if and only if benefits were received for 12 months in the aggregate within the last 3 years, (for instance, receipt of two benefits in one month counts as two months) AND only if received on or after the official date the rule goes into effect 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 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 the new 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.

    Under current law, to be deported as a public charge, the 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 the new rule, when a parent of a child receiving non-cash benefits (such as health insurance or food stamps) applies for a green card or to enter the U.S., the federal government will NOT consider the child's receipt of benefits. 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 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 and likely should 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?
    NO. 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?
    The general advice from advocates is 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. Even though the Supreme Court has allowed the rule to go into effect, a July 29th ruling from a federal judge in the U.S. District Court in the Southern District of New York has temporarily paused both the DHS and the DOS application of the new public charge rule, so long as there is a declared national health emergency in response to the COVID-19 outbreak.

    Also, if the rule does officially go into effect at a later date, it 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.

    We recognize that this answer is a bit complex. That is why, 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 will 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 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 U.S. 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. Because of the July 29th ruling, this too is temporarily on-hold during the declared national health emergency in response to the COVID-19 outbreak.

    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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Quick Reference Guide for Public Benefits Eligibility and Public Charge Impacts for Immigrants

COVID-19 Eligibility and Public Charge Guide for Immigrants

The Office of Immigrant and Refugee Affairs created this spreadsheet in collaboration with the Northwest Immigrant Rights Project (NWIRP) and Northwest Health Law Advocates (NOHLA). The information in this guide is intended to act as an accessible general reference for someone to quickly determine if an immigrant of a specific status is eligible for a specific program or public benefit and/or if there is a public charge impact. This guide is not intended to replace consultation with a qualified legal service provider. This guide does not, and is not intended to, constitute as legal advice. Instead, this content is provided for general informational purposes only.

Regarding specific eligibility, we continue to encourage individuals with questions about their situation to access a qualified legal service provider to assess immigration rules and their specific situations.