Recently, Documented received several messages from readers inquiring about the public charge rule and whether their residency in the country would be affected if they sought out benefits such as public housing or food assistance. Although President Biden issued a final rule defining many important aspects of public charge to reduce the confusion and fear caused by changes made during the Trump administration, the lingering effects of Trump’s policies have discouraged immigrants and their families from accessing critical government services.
In this article, we interview two immigration experts, Health Justice Staff Attorney Arielle Wisbaum at New York Lawyers for the Public Interest (NYLPI) and Senior Staff Attorney Ariel Brown at Immigrant Legal Resource Center, to clarify common myths and misunderstandings in the immigrant community about the public charge policy. They also analyze the potential impact of the 2024 presidential election on the public charge policy.
What is public charge?
The public charge rule is not a new concept. The U.S. Congress established the public charge inadmissibility test in 1883. Simply put, public charge determines if someone applying for a visa or green card would depend on public resources if they were to reside in the U.S. If the government determines that the applicant is likely to become a public charge, they can deny their application.
Brown noted that the rule didn’t become a significant concern until recently with the Trump administration, which attempted to expand its application in 2019. Trump tried to include non-cash assistance such as non-emergency Medicaid in the public charge analysis, causing a huge chilling effect. As a result, many immigrants became afraid to use any type of public benefits.
Wisbaum pointed out that, in fact, the scope of the public charge rule is limited. She said that it depends on the type of immigration application being submitted and the specific public benefits. Immigration officers also consider a range of factors, including health, age, income sources, education and skills, family size, and potential sponsors, when determining whether an applicant is likely to become a public charge.
Myth 1: Using any public benefit will make me a public charge
Not true. The public charge rule only applies to certain types of public cash assistance for income maintenance and long-term institutionalized care at government expense. Public cash assistance includes Supplemental Security Income (SSI), cash assistance under the Temporary Assistance for Needy Families (TANF) program, and state and local cash assistance programs that provide benefits for income maintenance.
One of the biggest changes the Biden administration made to the public charge rule is that it explicitly clarified that individuals receiving non-cash benefits, such as food stamps, housing vouchers or Medicaid, are not considered in the public charge analysis. There is one exception for Medicaid: if someone is receiving long-term institutionalized care, such as in a nursing home or psychiatric facility, that may be considered in the public charge evaluation.
Click here to see the full list of what public assistance programs USCIS does not consider as public charge.
Myth 2: Public charge rules apply to all immigrants
Not true. The public charge rule applies to immigrants who are seeking to enter the United States or to adjust their status to become lawful permanent residents, also known as green card holders. This includes those applying for visas or green cards from within the U.S. or abroad. However, it doesn’t apply to many noncitizen immigrants, green card holders and citizens.
For example, asylees and refugees, U Visa holders, T Visa holders, Cuban and Haitian entrants at adjustment of status are exempt from the public charge rules. Click here to see the full list of who are exempt from public charge.
For green card holders, please note that if you are traveling abroad for more than 180 days in a row or have certain criminal convictions, you may be subject to a public charge test again.
Myth 3: Public charge determinations will consider family members’ benefit use
Not true. An immigrant’s own use of public benefits is the only factor considered in the public charge determination, not their family members’ use of benefits. For example, many mixed-status families have U.S. citizen children. It’s perfectly acceptable for these children to access any benefits for which they qualify, including food stamps and cash assistance. Importantly, utilizing these benefits has no impact on the immigration status of the family member who is applying.
Also Read: How to Get Help Paying for Food and Groceries in NYC
Sponsors of immigration applications submit an affidavit of financial support, promising that the applicant will not become financially dependent on the government. Theoretically, the only way someone’s use of benefits could affect their sponsor is through mechanisms that require sponsors to repay the benefits used by the person they sponsored. However, such mechanisms are very rare and do not exist in most states.
Myth 4: Applying for public benefits will automatically lead to deportation
Not true. If someone applies for public benefits, their information will not be shared with ICE, meaning that ICE will not target individuals solely based on their applications for public assistance. Public charge comes into play when someone is deemed a public charge; in that case, their green card application may be denied. However, this does not lead to deportation; it simply means they may be ineligible for a green card.
Myth 5: Public charge changes public benefits eligibility
Not true. Eligibility for public benefits is distinct from public charge considerations. Public charge relates to the immigration implications of using those benefits but does not affect an individual’s eligibility. If someone is unsure about their qualifications for certain benefits, they should consult the relevant benefits granting agency to determine factors such as income level, age, immigration status, and other requirements.
How the election could potentially impact public charge
Any drastic changes to the public charge rules, such as the Trump administration’s expansion to include Medicaid, would take a long time to implement even under a new administration. This is because the rules are codified in regulations, and any major overhaul would require a lengthy notice and comment period, as well as potential legal challenges.
The Biden administration’s 2022 regulation that excluded non-cash benefits like Medicaid from public charge consideration would make it more difficult for a future administration to undo those changes. Those exemptions would require significant effort to overturn.
While a new administration could potentially try to expand the public charge rules again, the process would be lengthy and face significant opposition. For example, when the Trump administration proposed changes to the public charge rule, they received over 200,000 public comments, which significantly slowed down the process.
Public charge resources
Here are some online resources for immigrants to nevigate about the public charge policy. Wisbaum and Brown also suggest immigrants should consult with an attorney if they have concerns about how changes in administrations could impact the public charge test or if they are not sure if their situation would be considered as public charge.
- A “safe to use” list with many public benefits programs that are not a problem for public charge, only in English and Spanish
Immigrant New Yorkers who have questions about public charge can call ActionNYC at 800-354-0365 and say “public charge.” Call the hotline Monday to Friday, between 9 a.m. and 6 p.m. The ActionNYC hotline provides timely and trusted information, connections to City-funded, free and safe immigration legal help, and referrals to other legal and non-legal services. Help is available in over 200 languages.
