Changes to Public Charge: Analysis and Frequently Asked Questions

Analysis and Frequently Asked Questions

Last updated FEBRUARY 24, 2020 *

Two federal agencies’ regulations on the “public charge” grounds of inadmissibility went into effect on February 24, 2020. U.S. Department of Homeland Security (DHS) regulations will apply to U.S. Citizenship and Immigration Services (USCIS) processing in the U.S. of applications for adjustment to lawful permanent resident (LPR) status submitted electronically or postmarked on or after February 24, 2020. U.S. State Department regulations apply immediately to applications for visas and LPR status processed at U.S. consulates outside the United States.

Not every immigrant is subject to the public charge test. Refugees, asylees, and many other categories of humanitarian immigrants are exempt.

More resources, including for community education, are available on the Protecting Immigrant Families (PIF) Campaign website. The PIF Public Charge Dictionary defines common terms used when discussing immigrant eligibility for public programs.

Overview of How Public Charge Policy Has Changed

The public charge ground of inadmissibility has been a part of U.S. immigration law and policy since the late 1800s. Historically, a person has been considered a “public charge” if the person is primarily dependent on the government for subsistence. Individuals may be denied a visa to come to the U.S. or the ability to become a lawful permanent resident (sometimes referred to as having a “green card”) if they are deemed likely to become a public charge in the future.

In determining whether individuals are likely to become a public charge, immigration officials review their current situation and characteristics, looking at what the immigration statute calls a “totality of the circumstances.” 8 USC section 1182(a)(4). This assessment requires officials to consider, at a minimum, an intending immigrant’s age, health, family status, income and resources, education and skills, as well as the legal sufficiency of an affidavit of support filed on behalf of the person if the person is required to have one.

The DHS and State Department regulations that took effect on February 24, 2020, make three major changes to the meaning and application of public charge policy. They:

  • change the definition of “public charge”
  • add to the totality-of-circumstances factors standards and evidentiary requirements that disadvantage low- and moderate-income applicants
  • designate essential nutrition, health care, and housing benefits, as well as cash assistance for income maintenance, as benefits to be considered in the public charge assessment

In addition, the DHS regulations introduce a new test for nonimmigrants seeking extensions of their visas or a change to another nonimmigrant status (e.g., from a student visa to an employment visa), penalizing those who have used a listed benefit for 12 months in the aggregate out of the 36 months prior to their application.

The regulations introduce significant and harmful changes that will fundamentally alter the immigration system, making it much harder for low- and moderate-income immigrants to obtain LPR status (to get a “green card”) and ultimately U.S. citizenship.

The regulations caused significant harm even before they took effect. Fear and confusion have been causing people to disenroll from programs or to forgo benefits for which they are eligible. In other words, they’ve had a chilling effect. According to a December 2018 nationwide survey, about one in seven adults in immigrant families reported a chilling effect where individuals did not participate in a government program for fear of risking future green card status. Several states have reported drops in participation. The potential impact is far-reaching, given that 13.7 percent of the U.S. population is foreign-born and one in four children in the U.S. has at least one foreign-born parent.

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* This NILC edition of “Changes to Public Charge: Analysis and Frequently Asked Questions” is a revised and reformatted (but not updated) edition of a Protecting Immigrant Families (PIF) Campaign publication bearing the same title. This NILC edition was first published April 1, 2020.