The public charge provisions in the Immigration Nationality Act (INA) have been part of U.S. immigration law for decades. We recently reported that on December 23, 2022, the Department of Homeland Security (DHS) began using a new public charge inadmissibility test and published a new version of Form I-485, Application to Register Permanent Residence or Adjust Status.

Under Section 212(a)(4) of the INA, an individual who is “likely at any time to become a public charge” is ineligible for admission to the United States, i.e., can be denied entry to the United States and/or adjust status to become a lawful permanent resident (obtain a “green card”). Under the previous administration, the public charge rule was dramatically narrowed, thereby deviating from the historic meaning of the term “public charge.” The new rule that went into effect in December 2022 restores the historical meaning of the term “public charge.” For many immigrants, this means they are able to use health, nutrition and housing programs for which they qualify, without fear of negative immigration consequences.

It is important to highlight that some immigrants seeking lawful permanent resident status are not subject to the public charge inadmissibility test. For example, the following are all statutorily exempt from the public charge determination:

  • refugees
  • asylees
  • survivors of trafficking and other serious crimes (those with T & U visas)
  • “qualified” abused spouses or children and self-petitioners under the Violence Against Women Act
  • special immigrant juveniles (SIJ) or individuals seeking to renew their lawful permanent resident cards
  • certain individuals who have been paroled into the United States

Historic Meaning of the Term “Public Charge”

In 1996, as part of the new immigration and welfare reform, the agency adjudicating immigration applications, formerly known as the Immigration and Naturalization Service (INS), issued guidance and proposed regulations, which, for the first time, defined public charge. The standard required the government take an individual’s age, health, family status, assets, education and skills into account, and apply a “totality of the circumstances” test when making public charge determinations. These guidelines also specified an individual is able to cure a public charge designation through affidavits of support from one or multiple sponsors if their income is within 125% of the Federal Poverty Guidelines.

In 1999, the INS further defined the scope of the public charge inquiry by adding that individuals were likely to become a public charge if they primarily depended on the government for subsistence as demonstrated either by receipt of public cash assistance for income maintenance purposes or institutionalization for long-term care at the government’s expense. Since then, the U.S. government considered receipt of the following cash assistance programs for public charge consequences: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) and state and local cash assistance, called Safety Net and Family Assistance (SNFA) in New York. Nevertheless, historically, even the receipt of these types of public benefits did not automatically render someone a public charge; instead, the government continued to apply the “totality of circumstances” test.

Since the 1996 and 1999 proposed regulations, immigrant families eligible to receive public benefits were mostly able to access public benefits without the fear of possible immigration consequences. The focus of public charge remained on the receipt of cash assistance and long-term institutionalization allowing individuals to cure any potential public charge issue by providing affidavits of support from sponsors. In 2019, however, the government proposed a new rule providing greater latitude to find an individual is likely to become a public charge and allowing them to consider the receipt of most other public benefits for public charge inadmissibility purposes as well.

The Prior Administration’s Proposed Rule of Public Charge

In August 2019, the Department of Homeland Security (DHS) issued a new policy proposal that re-defined “public charge” as a ground of inadmissibility. The proposal re-defined public charge as an “alien who receives one or more public benefits” and broadened the programs that the federal government considered in public charge determinations. Public benefits that could be considered for public charge purposes would not only include cash assistance for income maintenance and institutionalized long-term care funded by the government, but also certain health, nutrition and housing programs previously excluded from public charge determinations. These programs included the Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps; the Section Eight program, which provides housing assistance; and the Medicare prescription drug program for older adults (Medicare Part D). In addition to the use of public benefits, the proposed rule also deemed certain health conditions, such as mental health disorders, heart disease and cancer, to be among the heavily weighed factors for inadmissibility determinations.

The proposed rule featured yet another significant change: sponsors of family-based petitions would no longer be able to cure the intending immigrant’s public charge concerns. A sponsor’s affidavit would carry significantly less weight and only be one factor in the totality of circumstances inquiry. In turn, an individual’s age, health and financial status, if negative, could have outweighed a sponsor’s affidavit of support. Furthermore, a sponsor’s own use of public benefits and that of any of his or her family members would have also been taken into account in the public charge determination.

Fear of inadmissibility and inability to adjust status in the United States has always run high in immigrant communities. Even individuals who are not affected by the public charge rule demonstrated heightened concerns because of the expanded public charge policy. Unsurprisingly, therefore, the 2019 proposal was expected to dampen immigrants’ willingness to access public services, even if they were legally entitled to them. In New York alone, 2.1 million people were affected by this policy. As one of the most used public benefits, it was expected that many immigrants would choose to unenroll from, or not enroll in, Medicaid altogether. In addition, the expanded scope of this policy proposal would have also affected nearly 20 million children in immigrant families, nine of 10 of whom are U.S. citizens.

The New (2022) Public Charge Inadmissibility Test

The new public charge rule, which is the rule currently in effect, restores the historical meaning of the term “public charge,” which had been in effect for decades prior to the previous administration’s restrictive revision of that term in 2019. As a result of the new definition, immigrant families are not forced to choose between health care and food for themselves and their children or their ability to receive legal permanent residency.

Under the current rule, an individual is deemed likely to become a public charge if DHS determines they are “likely to become dependent on the government for subsistence based on a totality of circumstances” analysis of the following factors:

  • The noncitizen’s age, health, family status, assets, resources and financial status; and education and skills, as required by the INA;
  • The filing of Form I-864, Affidavit of Support under Section 213A of the INA, submitted on a noncitizen’s behalf when one is required;
  • The noncitizen’s prior or current receipt of Supplemental Security Income (SSI), cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF), state, tribal, territorial, or local cash benefit programs for income maintenance (often called General Assistance), or long-term institutionalization at government expense.

Generally, USCIS will not consider noncash benefits in making public charge determinations. The only noncash benefit it will consider is long-term institutionalization at government expense. Therefore, health care programs, including Medicaid and COVID care, housing, food programs, and many other vital services, are safe to use for many qualifying immigrants. USCIS will not consider the following types of benefits in the public charge analysis:

  • Benefits received by family members other than the applicant;
  • Receipt of certain non-cash benefits such as Supplemental Nutrition Assistance Program (SNAP) or other nutrition assistance programs, Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any immunization benefits, disease-testing benefits, or other supplemental or special-purpose benefits;
  • Specific purpose payments, such as payments for nutrition, health, housing, child care, energy assistance, disaster relief, pandemic assistance, or for other specific purposes.

For an exhaustive list of programs that USCIS will not consider for their public charge determination, please see the USCIS resources page.

If you have questions about your particular case or related matters, contact the Harris Beach immigration team to discuss the options available to you. Our Immigration Law Practice Group includes immigration attorneys who work across New York State in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure companies are able to hire, transfer and retain the brightest and best non-U.S. talent.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.