Skip to main content
English
Xochitl Oseguera's picture

On September 22, 2018, the Trump Administration posted a proposed new rule changing the definition of who may be considered a “public charge” in the U.S. Earlier this year, the Trump Administration already made some changes regarding how public charge is interpreted abroad. 

 

If the rule is ­finalized in its proposed form, this would mark a significant and harmful departure from the current policy. For over a hundred years, the government has recognized that work supports like health care and nutrition help families thrive and remain productive. Entire households will be harmed, as there is no way to target individual immigrants without hurting children, families, and communities. 

 

Disclaimer: This FAQ contains general information and is not legal advice. If you have questions, you should speak with an immigration attorney or BIA-accredited representative who can assess your unique situation. 

 

FIGHT BACK! This proposed rule is not yet in effect, and there is still time. Once the rule is posted for public input, you will have 60 days to share your thoughts by submitting a comment. The rule won’t become final until after the government has responded to community input, and ultimately the details of the rule may change. 

Background

Changes Abroad

Changes in the US

What Can I Do Now?

 

BACKGROUND

 

What is public charge?

“Public charge” is a term used in immigration law to refer to a person who is likely to become primarily dependent on the government to meet his or her basic needs. Under the new proposed rule, the government now wants to redefine “public charge” more expansively, as an immigrant who receives one or more listed public benefits. 

 

When does the public charge test apply?

The test applies in 2 situations: 1) when a person applies to enter the U.S., or 2) when a person applies to adjust status to become a green card holder (Lawful Permanent Resident). When you apply for a visa or green card, you must submit an application form. Using the information from the form and from the interview that follows, the government will decide if you are likely to become a “public charge.” The test is not used when applying to become a U.S. citizen.

 

How does the government decide who is likely to become a “public charge”?

The public charge decision is based on several different factors.Called the “totality of circumstances” test, an immigration officer looks at the applicant’s age, health, family status, financial status, education and skills, and their affidavit of support (if they have one). The government must look at your whole situation to decide if you are likely to depend on public programs in the future.

 

What is an “affidavit of support”?

An affidavit of support is a legally enforceable contract that a person (called a “sponsor”) signs to accept financial responsibility for another person, usually a family member, who is coming to the U.S. to live permanently.

 

How do I prove that I’m not a public charge?

Make the best case for yourself (with documentation, your interview, etc.) when seeking a visa or green card!  You can explain why you are not likely to become a “public charge” in the future. 

 

Who is currently considered a public charge?

Currently, immigration officials may consider you likely to become a public charge if you receive support through:

  • Cash assistance programs, including:
    • Temporary Assistance for Needy Families (TANF), which has different names in various states.
    • Supplemental Security Income (SSI), which helps people with limited income and who have disabilities, are blind, or are age 65 or older.  
    • General Assistance or other local cash assistance programs.
  • Long-term institutional care paid by the government (e.g., Medicaid to stay at a nursing home).

 

What if I used these benefits in the past? 

The public charge test is forward-looking and cannot be based only on what may have happened in the past. If you previously received benefits but your situation has changed, you can show that you will not need those services now or in the future (e.g., if you have a new job). 

 

Does public charge apply to ALL immigrants? 

No. Some immigrants are not subject to the public charge test. Certain humanitarian immigrants, including refugees, immigrants who are applying for or were granted asylum (asylees), and women, men, or children applying for a green card under the Violence Against Women Act (VAWA), individuals who have or are applying for U visas or T visas, children seeking Special Immigrant Juvenile Status, as well as some other protected categories are either exempt or can qualify for a waiver of public charge. 

 

If you fall under any of these categories, you can use ANY benefits you are eligible for - including cash aid, health care, food programs and other non-cash programs without worrying that doing so will harm your chances of getting a green card or improving your status.

 

Public charge does not apply to green card holders when they apply to become U.S. Citizens. 

 

What if I already have a green card and am receiving benefits?

You cannot lose your green card just because you, your child, or other family members use benefits properly.  And, you cannot be denied U.S. citizenship for lawfully receiving benefits. But you MAY have a problem if you leave the U.S. for more than 6 months and try to reenter the US. Talk to an immigration attorney before you leave.

 

What if I am a U.S. citizen and am receiving benefits? 

Public charge does not apply to U.S. citizens. If you are a U.S. citizen receiving benefits, you should can continue receiving the basic needs programs for which you are eligible.

 

What if I want to sponsor or am sponsoring someone for a green card?

Using benefits should not prevent you from sponsoring someone (likely a family member) who is seeking to a green card in the U.S.  But it could be considered if your family member is seeking a green card from abroad or needs to go abroad for the interview.  You must show that you or a co-sponsor and/or joint sponsor have enough money or resources to support that person.

 

Can I be deported as a public charge?

Under current law, in extremely rare circumstances, a person who has become a public charge could be deported. These rules are very narrow and have almost never been applied.  The proposed rule does not interpret or expand the public charge ground of deportability. 

 

Changes Already Happening Abroad

 

The rules for public charge have already changed for those who are seeking a visa or a green card from abroad. 

 

What changes have happened abroad?

In January 2018, the Department of State amended their rulebook, called the Foreign Affairs Manual (FAM), on public charge. The FAM provides guidance to government officers at consulates abroad to make decisions about whether to grant permission to enter the U.S.

 

How do these changes affect me and my family?  

The changes to the FAM may affect you in the following ways:

  • If you are seeking a visa to the U.S., you may be subject to the public charge test and will need to make the best case for your situation.
  • If you are a green card holder and receiving benefits, and plan to travel outside the U.S. for more than 6 months, you may be subject to the public charge test when seeking to re-enter the U.S. Talk to an immigration attorney before you leave.
  • If you are sponsoring a family member who is seeking to obtain a green card from abroad, be prepared for questions about your relationship to that person.
  • We recommend that you work closely with an immigration attorney before proceeding to a consular interview.

 

Proposed Changes in the U.S.

 

The rules for public charge may change for people seeking a green card in the U.S. Decades ago, the government clarified that immigrant families can seek health and nutrition benefits without fearing that doing so will harm their immigration case.  If this rule is finalized, we can no longer offer that assurance. 

 

What are Trump’s proposed changes to the public charge rule? 

If finalized, the proposed change in policy would:

  • Add more programs that could be considered, including certain health care, food and housing programs.
  • Increase the income line for applicants who hope to overcome the “public charge” test. People earning under $31,000 annually for a family of 4 would be weighed negatively.  And people would need to earn over $63,000 annually for a family of 4 to be weighed positively, or overcome other negative factors.
  • Apply a similar test to: 1) requests to extend a non-immigrant visas (e.g, stay longer in the U.S. with your visitor’s visa), and 2) requests to change your non-immigrant status (e.g., change from a student visa to an employment visa).
  • Sets forth standards for immigration officials to consider when evaluating your individual case.
    • For example, people with limited English speaking skills or with physical or mental health conditions that could affect their ability to work, attend school or care for themselves will be viewed negatively in the “totality of circumstances” test.
  • Elevates the use of public charge bonds for people applying for a green card.
    • People who are deemed a “public charge,” because of their income, a health condition or other factors may be required to pay a minimum of $10,000 to enter the U.S. and would risk losing this bond if they use any benefits listed above.

Which programs would be added? 

The programs that would be considered in a public charge test, in addition to the cash and long-term care programs already considered in the public charge test (listed on page 2) are:

  • Health coverage through Medicaid, except for emergency Medicaid.
  • Supplemental Nutrition Assistance Program (SNAP, formerly called Food Stamps)
  • Low Income Subsidy for prescription drug costs under Medicare Part D; and
  • Rental assistance under Section 8 housing vouchers, Project Based Section 8, and Public Housing.

 

What is not included?

Disaster relief; emergency medical assistance; entirely state, local, or tribal programs (other than cash assistance); benefits received by immigrant’s family members; or any other benefit not specifically listed in the proposed rule. Benefits not listed, such as education, child development, employment and job training programs are also excluded. DHS asked for input on whether Children’s Health Insurance Program (CHIP) should be considered.  The program is not currently included in the text.

 

What if my family members use health care, nutrition, education or other programs?

Generally benefits received by you as the applicant -- not your family members -- are considered.  If the proposed rule goes into effect, the government will not consider your children’s use of non-cash benefits (e.g., health insurance or food stamps) in your own application for status. However, if your children’s cash benefits are your only source of support, the public charge test may affect you. Be sure to speak with an immigration attorney about your case. 

 

But what about that children receiving health coverage?

Children who are applying for a green card could be subject to the proposed new rules.  And if they are receiving Medicaid, this could be weighed in the public charge test, along with their age, income and other factors.  The government has asked for input on whether to include the Children’s Health Insurance Program (CHIP) in the final rule change, but this program is not included in the current regulatory text.  Children who are U.S. citizens are not subject to a public charge test.

 

What if I am serving in the military?

The proposed regulations would exclude benefits received by active duty servicemembers, their spouses and children. 

 

What if I receive a benefit that’s not listed?

Only the benefits listed in the proposed rule may be considered. Benefits not listed, such as education, child development, employment and job training programs, are not part of the public charge test. For example, Pell Grants, WIC, child care or other benefits that are not listed will not be considered. 

 

Should I stop the benefits we are receiving now? 

If you or your family are getting benefits to go to the doctor, pay for food, or pay rent – you do not need to stop your benefits. The proposed rule is NOT yet final and won’t be in effect for months. The proposed rule says that it will apply only to programs you use after the rule goes into effect. 

 

If I use Medicaid or food stamps, will I get in trouble with immigration? If you are living in the U.S. and applying for a green card here, it’s still OK for you to use Medicaid or SNAP (food stamps).  And remember, the government will look at your whole situation to decide if you are likely to depend on government programs in the future. If you received support in the past but no longer will need it, you can show that you no longer use or need these benefits. For example, you can show that you have a job or other health insurance now.

 

Even if the proposed rule goes into effect, your US citizen children can still receive SNAP (food stamps) if they are eligible, without affecting your application for status.

 

If I use Obamacare, will I get in trouble with immigration? Under both current and proposed rules, it is OK for you to use Obamacare (the Affordable Care Act Insurance) with financial assistance, if you are eligible. This will not hurt your immigration status. 

 

If I get WIC, will I get in trouble with immigration? Under current and proposed rules, it is OK to get help from WIC (The Women, Infants, and Children’s Program). This will not hurt your immigration status. 

 

If my kids go to Head Start/Early Head Start will I get in trouble with immigration? No. Under current rules and the proposed rules, it is OK for you to use educational programs like Head Start or Early Head Start.

 

A few years ago, I used benefits to see a doctor and buy food. Does that mean I won’t be able to get a green card? 

The proposed rule does not apply to non-cash benefits that you received in the past. The benefits you received lawfully before the rule becomes final will not affect your ability to get a green card.

 

How about if I am undocumented and I want to apply for benefits? 

Unfortunately, if you are undocumented, you are not eligible for most major benefit programs. However, it’s OK for you to apply for your U.S. citizen child(ren). You only have to give information about your child’s citizenship or immigration status. You do not have to give – and the applications should not ask for – immigration status information about yourself or others in the household who are not applying for benefits. You can just say, “I am not applying for benefits for myself.” 

 

Even if you are uninsured, you have certain health care options, regardless of your immigration status. For example, you can access

  • Emergency-room care
  • Community health centers, migrant health centers, and free clinics
  • Public and safety-net hospitals
  • Public health services (immunizations, mental health, screening and treatment for communicable diseases such as tuberculosis, HIV, sexually transmitted infections)
  • Programs providing health services necessary to protect life or safety: emergency medical, food or shelter, mental health crisis, domestic violence, crime victim assistance, disaster relief
  • Treatment for an emergency medical condition under “emergency Medicaid,” including labor and delivery for pregnancy
  • financial assistance or “charity care” programs at community health centers and most hospitals

 

More options may be available in your state; check with a trusted local health care provider or with an immigrants’ rights or health advocacy group. More information is available at www.nilc.org/healthcoveragemaps/ and www.nilc.org/medical-assistance-various-states/.

 

I am undocumented. If I seek Medicaid, Food Stamps or other programs for my children, can they report me to immigration? 

Most benefit agencies, but not all, keep your information private and confidential. They can check to make sure you are eligible for the program, but cannot share the information with ICE for immigration enforcement. When applying for programs, be sure to limit how much information you share about your lack of immigration status.

 

I don’t have a Social Security Number (SSN).  Can I still apply for programs for myself or my family members?

Some programs require SSNs for applicants who will receive the benefits, and may provide benefits while they assist the person in getting an SSN.  If you are applying for benefits on behalf of an eligible family member, you would be required to provide their SSN, but would not be required to provide an SSN yourself. 

 

If I have a green card and use benefits to go to a doctor, does that mean I cannot become a citizen?

No. The proposed rule does not affect green card holders applying for U.S. citizenship.

 

I am a refugee. Can I still apply for programs like Medicaid or Food Stamps? Yes. The public charge rules do not apply to refugees.

 

How will the rule affect individuals with disabilities?

The proposed rule would negatively consider applicants that have physical or mental health conditions that could limit their ability to work, attend school or care for themselves.

 

Lawyers are often very careful, especially in uncertain times. The proposed rule says changes will not apply to benefits (other than cash assistance or long-term care) that you received before the rule is final. If you are still worried, get advice about:

  • How the proposed rule could affect your situation, and
  • Any pathway to lawful permanent residence that you or a family member has in the near future.

 

If you need help locating free or low-cost immigration help, go to the online National Immigration Legal Services Directory.

 

I have my green card. Can the government deport or “remove” me because my family or I use programs like Medicaid or Food Stamps? 

If you were eligible, the government cannot deport you based on your use of these programs.

 

I have my green card and need to renew it soon. Can the government deny my renewal application because I am receiving Medicaid, food stamps, and/or housing assistance? 

No. The public charge test does not apply when you renew a green card. The renewal application cannot be denied based on your use of programs you are eligible for. 

 

Can naturalized U.S. citizens lose their citizenship if they use programs like Medicaid or Food Stamps?

No. U.S. citizens cannot lose their citizenship based on their lawful use of public benefits. Once you become a U.S. citizen, the government cannot deport you, and must always let you return to the U.S. after a trip to another country.

 

When could the proposed rule be approved and start?  

We do not know for sure. The government must follow a long process before the rule becomes final and active. Before the rules become final, the government must

  • Give the public a chance to give their opinions, and
  • Read all of the public’s comments.

 

SO WHAT CAN I DO NOW?

 

Fight back!! Everyone—your doctor, community leaders, your neighbors, your relatives, and even you -- can speak up and oppose this rule change. Make a difference. 

 

The rule process usually takes several months. 

Once the rule is formally posted, the comment process will take 60 days, and the government will then need to consider all of the comments submitted. This could take weeks or months. If the government decides to change the rule in response to the comments, it takes at least another month for the rule to start. Congress does not have to approve the rule for it to become effective, but it should also review the rule. Review in Congress could slow down or block the rule.

 

What can I do now? 

Think through the impact this proposed rule may have on your family. We recommend having these conversations now, as you continue taking care of your needs, like attending your doctor’s appointment(s). 

 

  • Are you using any programs that may be considered in the “public charge” test?  
  • Are you working or able to find other ways to fulfill your basic needs if this rule goes into effect?
  • Do you have a way to get a green card in the near future?

 

How can I help?

We need to be strong because the stakes are high. Let the government know that this rule would harm you, your family, community and the country. 

  • Join us in submitting comments to oppose this proposed change.
  • Organize your networks, your neighbors, and your family to weigh in and do the same.
  • Share your own story.  

 

Click here to send your message about why this proposal is a bad idea. You do not have to list your contact information or your immigration status – just your name. If you do not want to provide your name, you can ask a friend or representative to share your story for you.

 

What if I have more questions? Talk to someone who knows the rules. Contact trusted sources of information, including:

  • A trusted nonprofit serving immigrants
  • A community health clinic or social worker
  • Your immigration lawyer

 

Groups all over the country are monitoring and planning to fight the public charge rule change. For more information and to sign up to receive the latest information, go to www.protectingimmigrantfamilies.org.

 

This information was written by “The Protecting Immigrant Families, Advancing Our Future” campaign, co-chaired by the Center for Law and Social Policy (CLASP) and the National Immigration Law Center (NILC).


The views and opinions expressed in this post are those of the author(s) and do not necessarily reflect those of MomsRising.org.

MomsRising.org strongly encourages our readers to post comments in response to blog posts. We value diversity of opinions and perspectives. Our goals for this space are to be educational, thought-provoking, and respectful. So we actively moderate comments and we reserve the right to edit or remove comments that undermine these goals. Thanks!