Public Charge Rule

On February 24, 2020, the U.S. Department of Homeland Security - which includes US Citizenship and Immigration Services and the U.S. Customs and Border Protection- will begin implementing a public charge rule, which considers an individual’s receipt of certain public benefits and/or likelihood to require public benefits when evaluating eligibility for immigration benefits or admission to the United States.

Effective Date

Receipt of public benefits, beginning on February 24, 2020, could adversely affect visa applications, admissibility, immigration status, or applications for permanent residence.

Receipt of public benefits that are not covered by the 1999 Interim Field Guidance, would not be considered for public charge purposes unless the receipt occurred after February 24, 2020.

Definition

The new rule defines public charge as a foreign national who “receives one or more public benefits…for more than 12 months in the aggregate within any 36-month period.”  In addition to cash assistance for income maintenance, “public benefit” includes the following:

  1. Any federal, state, or local cash assistance for income maintenance (other than tax credits):
    1. Supplemental Security Income (SSI)
    2. Temporary Assistance for Needy Families (TANF)
    3. Federal, state, or local cash benefit programs for income maintenance
  2. Supplemental Nutrition Assistance Program (SNAP; commonly known as “food stamps” or “CalFresh” in the State of California
  3. Section 8 Housing Assistance, Section 8 Project-Based Rental Assistance, or Subsidized Public Housing
  4. Public Housing under Section 9 of the U.S. Housing Act of 1937
  5. Medicaid (with some exceptions)

USCIS Forms

Be aware that revised USCIS forms will now ask if you have received or have been currently certified to receive (by the benefit-granting agency) any of these benefits. The forms will ask for the date you started receiving the benefit, or if certified, the date you will start receiving the benefit, and the date the benefit ended or expires.

Totality of Circumstances Test

Caution should be exercised by non-U.S. nationals in accepting any form of public benefit, however, as immigration officers will use a “totality of circumstances” test when reviewing applications for admission to the U.S., or permanent residence applications, and receipt of any public benefit may be taken into consideration to affect the application.  State and local benefits are not addressed in the public charge rule, but could be factored into totality of circumstances.  Some other factors that may be considered include health, employment status/history/potential, income, assets, age, credit history, and English proficiency. 

Legal Assistance

Public charge determinations are outside the scope of OISS advising. If you have questions regarding the use of public benefits we encourage you to seek out the assistance of an immigration attorney. Of course, the safest course of action is to not apply for or accept benefits that will likely jeopardize your status.

Frequently Asked Questions

  1. What State of California benefits ARE or MIGHT BE included in the rule?
    • CalWorks
    • CalFresh
    • Medi-Cal (age 21+)
    • In-Home Support Services
  2. What benefit programs ARE NOT included in the public charge rule?
    • Emergency medical assistance;
    • Disaster relief;
    • National school lunch programs;
    • The Special Supplemental Nutrition Program for Women, Infants, and Children;
    • The Children’s Health Insurance Program;
    • Subsidies for foster care and adoption;
    • Government-subsidized student and mortgage loans;
    • Energy assistance;
    • Food pantries and homeless shelters;
    • Head Start.
  3. What if my family members received benefits, but not me?
    • The determination technically depends on who is applying for a visa, admission, change of status, or adjustment to Green Card. If you are applying, DHS or DOS will be considering your use of public benefits only, but if your household qualifies for public benefit programs, that could indicate that you have a low income, a possible negative factor. If your spouse is applying for a visa, admission, change of status, or adjustment to Green Card, then DHS or DOS would be reviewing their application.
  4. Will I be deported if I use these benefits? What does it mean to be found inadmissible?
  • Use of benefits alone would not necessarily result in an order to be deported. But, use of benefits or being found to be likely to become a public charge could result in students or scholars being denied future admissions to the U.S., visas, change of status, or adjustment to Permanent Residence (Green Card). However, if you have misrepresented yourself, or provided fraudulent documentation to the U.S. government in order to obtain public benefits, this could be a more serious issue with legal consequences.

Additional Resources:

USCIS Public Charge Summary webpage

USCIS Public Charge Fact Sheet