What is Public Charge?

On August 14, 2019, U.S. Citizenship and Immigration Services, part of the U.S. Department of Homeland Security, published a final public charge rule after proposing a change in late 2018. Until October 14, 2019, the definition of “public charge” is a person who is “likely to become primarily dependent on the government for subsistence.” The definition that goes into effect on October 15, 2019, is a person who receives 12 months of Medicaid, SNAP, federal housing assistance, or state or federal cash assistance programs within a 36-month period.

The pubic charge test in the new rules applies when someone is applying for their green card in the U.S. and looks at whether someone is more likely than not to meet the public charge definition in the future. To make that assessment, officials look at overarching factors in a “totality of circumstances test,” including a person’s age, health, family status, income, education and skills, and affidavit of support. If a person is deemed likely to become a public charge, his or her application may be denied.

Who does a public charge test apply to?

Does apply to:

  • People applying for a visa to enter the U.S. temporarily or permanently
  • People applying for Lawful Permanent Resident status (i.e. Green Card)
  • Lawful Permanent Residents who reenter the U.S. after being abroad for more than 6 consecutive months

Does not apply to:

  • People applying for U.S. Citizenship, Green Card renewal, or DACA renewal
  • Refugees, asylees, and people with TPS, U or T Visa, or Special Immigrant Juvenile Status*
  • Certain people paroled into the U.S.
  • Active duty service members, their spouses, and children

*The use of benefits when in these immigration categories does not count against a person when later applying for a Green Card.

What is changing?

The final rule expands the public benefit programs that can be considered in a “public charge” assessment and adds specific factors to the “totality of circumstances” test. Previously, officials could only consider use of cash assistance for income maintenance and government funded long-term institutional care in the public charge assessment.

Under the new rule, officials may also consider:

  • Federally funded Medicaid (except for emergency services and services for children under 21 and pregnant women)
  • SNAP, the federally funded food assistance program
  • Federally funded housing programs (e.g. Public Housing, Section 8 housing vouchers)
  • Federal, State, Local, and Tribal cash assistance

However, officials cannot consider benefits used by a family member of an applicant.

The new rule also establishes specific factors within the “totality of circumstances” test which hold negative or positive weights in a public charge assessment.

  • Negative factors include having an income under 125% FPL, being under 18 or over 61 years old, and having a medical condition that requires extensive treatment without the resources to pay for care.
  • Positive factors include having an income above 250% FPL and having private health insurance that is not government subsidized.

It is important to note that the above information relates to individuals applying within the U.S. For those applying for a Green Card or visa outside the U.S. (at a consular office abroad), different rules apply.[1] For advice on whether your application will need to go through a consulate office and how those rules will impact your case, please reach out to an immigration attorney.

When is it changing?

These changes begin on October 15, 2019 – any applications submitted on or after this date will be reviewed with the new standards.

Why is this important and what are the next steps?

Research indicates that approximately 393,000 people, including 161,000 children, in Colorado may be impacted by this rule due primarily to fear and confusion about what it will mean for families.[2] That fear and confusion about the upcoming change has already resulted in a ‘chilling effect’ or drop in enrollment in benefits, particularly Health First Colorado (Colorado’s Medicaid Program) and Child Health Plan Plus. We anticipate further declines in enrollment as the rule comes into effect.

Many Attorneys General, including Colorado’s Phil Weiser, have filed lawsuits to block the public charge rule from being implemented and other advocacy groups are expected to file soon as well. We will continue to monitor the situation and impact on children and families’ enrollment in health care programs and will share updates, as available, through blog posts, monthly meetings, and monthly newsletters. If you do not already receive CKF’s newsletter and meeting agendas, sign up here.

Additional Resources:

[1] More information on application procedures outside the U.S. are available from the National Immigration Law Center (How to Talk with Immigrants and Their Families About Public Charge Determinations Made Abroad; Changes to “Public Charge” Instructions in the U.S. State Department’s Manual)

[2] Protecting Immigrant Families (August 2019). The Trump Administration’s Public Charge Rule Could Impact 393,000 People in the Centennial State. Retrieved from https://www.clasp.org/sites/default/files/CO%20PIF%20State%20Fact%20Sheet_08.15.2019_1.pdf.