Public Charge; What it is and how it affects you

**Note: these changes do not affect programs offered through the HSRC. Programs the HSRC offers are public education resources, not public services through the state**


Recently, the U.S. Citizenship and Immigration Services (USCIS) has made drastic changes to the way immigrants coming into the United States can get entry as well as to the way existing immigrants can apply for visas or green cards.

After attending the Public Charge Webinar for Oregon Service Providers, hosted by organizations like Causa and Oregon Law Center, the information that was provided to me was astounding. The changes to the Public Charge rule are important to our communities because as some in the webinar stated, folks have decided to discontinue using their benefits or applying for benefits altogether because of the misconceptions that came along with the change.

Public Rule under USCIS (U.S. Citizenship and Immigration Services):

“The final rule enables the federal government to better carry out the provisions of U.S. immigration law related to the public charge ground of inadmissibility. The final rule clarifies the factors considered when determining whether someone is likely at any time in the future to become a public charge is inadmissible under section 212(a)(4) of the INA, and therefore, ineligible for admission or adjustment of status.” Source

Under this new rule, USCIS states that this rule applies to: 

“applicants for admission, aliens seeking to adjust their status to that of lawful permanent residents from within the United States, and aliens within the United States who hold a nonimmigrant visa and seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification.” Source

“This has caused immigrant communities and families of mixed-status to discontinue applying for or receiving benefits that they are eligible for from the State of Oregon. This causes concern in the wider Human Services community. Spreading fear instead of accurate information on what this change actually does,” say some Causa staff members.

So what is Public Charge in plain language?

  • Public charge does not apply to every immigrant
  • Many public benefits do not count toward Public Charge
  • Public Charge benefits my benefit you and your family, not count against you
  • Public benefits =/= Public Charge

What is “Public Charge?”

  • “Public Charge” is a test that U.S. immigration officials apply when deciding if an immigrant will be permitted to stay or enter the country if they are “unable to take care of themselves without being a public charge” (USCIS, 2019).
  • The idea of Public Charge has been around for 100 years, and it’s been the same for the last 20 years
  • Public Charge has historically and continuously been used as a racialized tool to keep certain groups of people outside of the United States

What does the test look like?

  • The Public Charge test is when a federal immigration official decides whether an immigrant is going to, in the future, require more support of the U.S. Government
  • This is done by the official considering everything about a person
    • Their ability status, age, gender, etc.
  • The Public Charge test is only administered when someone is:
    • Applying to enter the U.S.
    • Applying to be a Lawful Permanent Resident (Green Card)
    • A Lawful Permanent Resident re-enters the country after being outside of it for 180 consecutive days (6 months)
    • People who are applying for an extension of stay or current visas (as of Oct. 15, 2019)
    • Does NOT include when someone is applying to become a U.S. Citizen
    • Humanitarian Immigrants are exempt from this requirement, even if they are applying to become a Lawful Permanent Resident.

What is changing about the rule?

There are major changes happening to the definition of Public Charge. There are additional public benefits that are going to be considered by immigration officials, which we will name down below. There are also new “weighted” factors to the “totality of circumstances” test that make it harder for low and moderate income people to pass. One new requirement is that this test is also being extended to folks applying for extended visas or stay.

Changing Definitions

Another major change is how the USCIS is defining what a Public Charge is.

The old definition of a Public Charge was a person who was only using and living off of public benefits for most of their daily operations. Someone had to basically have nearly every single public benefit available to them and using it consistently to be considered a Public Charge.

Under this new definition, “any person who receives one or more public benefits… for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months.”

What does that mean?

  • If an immigrant is more than likely to use 12 months of benefits in a 3 year period
    • In the aggregate means, they will count each benefit someone receives in a month as its own single month.
      • So, if someone gets TANF (Temporary Assistance for Needy Families) or SSI (Supplemental Security Income) payment in one month, an immigration official will count them as TWO months in that three year period.

What benefits count under this new rule?

The list of benefits that count for Public Charge has expanded from 3 programs to 6. The programs listed below count towards Public Charge:

  1. Temporary Assistance for Needy Families (TANF)
  2. Supplemental Security Income (SSI)
  3. Long term care in an institution
  4. Supplemental Nutrition Assistance Program (SNAP)
  5. Non-Emergency Medicaid for non-pregnant adults 21 or older
  6. Section 8 (vouchers and public based) Housing

Benefits that DON’T count towards Public Charge

  1. Children’s Oregon Health Plan (OHP), Cover All Kids, Emergency Medicaid, and Pregnant Medicaid
  2. Medicaid/Children’s Insurance Program for 21 and under and Pregnant folks up to 60 days postpartum
  3. Head Start
  4. School/Summer Meals
  5. Special Education (SpEd)
  6. Medicare (including Part D low-income subsidies)
  7. Social Security Retirement
  8. Unemployment Insurance
  9. Food boxes/Food banks
  10. Anything NOT listed above this section
  11. Workers comp
  12. Community Health Clinics
  13. Low Income Home Energy Assistance

“Totality of Circumstances” Test

The totality of circumstances test is based mainly on the finances of the person applying to come into the United States. Through this, there have also been some substantial changes.

For example:

  • Households whose income is at least 250% above the Federal Poverty Level (FPL) are weighed in their favor.
  • Households whose income is at 125% above the FPL or below is heavily weighted against them.

Other things that are considered in the totality of circumstances are:

  • Family size
  • Age (18-61, working-age)
  • Not working – weighed against
  • Education
  • Skills and employment (unemployment weighed against)
  • English proficiency
  • Health and medical condition
    • Serious conditions indicate a negative factor
  • Availability of private (subsidized) health insurances
  • Credit scores
  • Past use of public benefits (only those defined).

How do immigration officials know about the ToC factors?

The I-944 Form or “Declaration of Self-Sufficiency” is filled out when folks are applying to be in the United States. If this is a form you personally haven’t had to fill out, then there shouldn’t be anything that can affect you. The form itself is about 18 pages long and takes a long time to fill out, though the federal government estimates it takes about 4.5 hours, it’s estimated to take much longer.

It’s important to remember that this post doesn’t answer the questions for everyone. Individual cases are unique and require unique answers. The positive factors in applying and getting public assistance can counterbalance the perceived negative outcomes of this new rule. The use of Public Benefits alone won’t make you a public charge. The risks to not getting the health care, nutrition and housing assistance you need are there and shouldn’t be taken lightly.

There are many categories of immigrants that are exempt from this public charge rule:

  • Refugees and asylees
  • Survivors of trafficking, violence, and other serious crimes (T- & U- Visas)
  • VAWA Self-Petitioners
  • Certain people paroled into the U.S.
  • Special Immigrant juveniles and more

The public charge rule does not apply to Lawful Permanent Residents who need to renew their LPR Card or LPRs who are applying to naturalize and become U.S. citizens (as long as they don’t leave the U.S. for 180 days before becoming a citizen).

It’s also important to note that this rule is NOT retroactive. Meaning the changes won’t take effect until October 15, 2019, and the newly added benefits will only “count” if they are received on or after October 15, 2019. Applications for Lawful Permanent Residents will be processed using the old public charge rule if filed or postmarked before October 15, 2019.

Are the courts challenging this rule change?

Already, there have been 9 lawsuits filed against the Federal Department of Homeland Security for passing this rule. The legal challenges to the rule are pending and may delay or block its implementation — it’s important to stay informed!!!

Resources to refer to and stay informed:

Updates on Public Charge:

As of: