FREQUENTLY ASKED QUESTIONS

Public Charge FAQs

What is the Public Charge requirement?

The public charge ground of inadmissibility has been part of the U.S. immigration law since the 1800s. Previous policy defined public charge as any applicant for admission (or green card applicant) who is likely to become “primarily dependent” on the government for subsistence, such as public cash assistance for income maintenance or institutionalization for long-term care at government expense.

 

Under the new Public Charge Final Rule, published in August 2019, a public charge is defined as an alien who has received one or more public benefits for more than 12 months within any 36-month period.  Since the public charge rule is prospective in nature, the United States Citizenship and Immigration Services (USCIS) must determine whether a foreign national is more than likely to become a public charge at any time in the future.

Nonimmigrants who have applied for public assistance in the last 12 months may be denied for an extension of stay or change of status, and all applicants for permanent residency will be required to submit additional documentation to show that they are not likely to become a public charge.

 

When does the Public Charge Final Rule take effect?

The Final Rule will apply only to green card applications or change of nonimmigrant status or extension of stay petitions postmarked (or submitted electronically) on or after February 24, 2020. 

Who will be impacted by the Public Charge Final Rule?

 

Unless specifically exempted, the public charge ground of inadmissibility will apply to two classes of foreign nationals:

 

  1. Family-based and Employment-based green card (adjustment of status) applicants; and

  2. Nonimmigrants seeking change of status or extension of stay in the United States.

 

The Final Rule only applies to applicants for admission or adjustment of status applicants; it does not apply to lawful permanent residents (LPRs) filing I-751 petitions to remove conditions on residence or N-400 citizenship applications. Although the Final Rule is not retroactive, it will apply to LPRs who are returning to the United States after being abroad for more than 180 days as they are considered to be applicants for admission at entry.

What public benefits will be considered under the Public Charge requirement?

 

The Final Rule expands public benefits to include non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), food stamps; Medicaid; and housing vouchers and other housing subsidies that are not currently considered under DHS policy. Similar to current policy, DHS will not consider receipt of non-cash benefits, or any “earned” benefits such as unemployment, Social Security or paid family/maternity leave from the State. See Appendix A for list of public benefits.

 

The USCIS cannot consider public benefits that were received prior to February 24, 2020. Please note that only public benefits received by, or applied or certified for, the foreign national applying to adjust status will be considered under the Final Rule. Public benefits received by family members are not counted against the foreign national for public charge purposes unless the public benefits amount to the sole support of the family.

How will the Public Charge Final Rule be applied to adjustment of status (green card) applicants?

 

All family-based and employment-based green applicants, regardless of age, will be required to file a Form I-944, Declaration of Self-Sufficiency concurrently with Form I-485, Application to Register Permanent Residence or Adjust Status. On the Form I-944, applicants will need to disclose the receipt of public benefits as well as submit evidence including federal income tax returns, credit report issued in the last 12 months, proof of assets and liabilities, proof of health insurance and proof of English proficiency and education. Please note that in family-based green card applications, the sponsoring relative / petitioner is still required to file Form I-864, Affidavit of Support accepting all financial responsibility for the green card applicant.        
 
To determine if an applicant is more likely than not to receive public benefits, immigration officers will apply a multi-factor, totality of circumstances test focusing on the applicant’s age, health, family status, assets, resources, and financial status, and education and skills. While no single factor will determine whether an applicant is a public charge, the Final Rule provides heavily weighted negative and positive factors to consider in the determination. Negative factors include lack of employment history, negative credit rating, receipt of public benefits, as well as the diagnosis of a medical condition that is likely to require extensive medical treatment and long- term care. Heavily weighted positive factors include having a household income at or above 250% of the federal poverty guidelines, current employment and private health insurance. [Please see Appendix B for multi-factor test and required supporting evidence]

 
How does the Public Charge Final Rule affect nonimmigrants?

If the nonimmigrant has received public benefits for more than 12 months in total in any 36-month period since obtaining the nonimmigrant status that he or she seeks to extend or change, then the nonimmigrant will be a deemed a public charge and the petition will be denied. The standard for determining whether a nonimmigrant seeking extension of stay or change of status within the United States is a public charge is retrospective, rather than prospective.

 

Does the Public Charge Final Rule apply to visa applications at U.S. consular posts?

 

No, the USCIS Public Charge Final Rule does not apply to visa applications at the U.S. embassies or consular posts abroad. However, the Department of State (DOS) has implemented a public charge rule similar to the USCIS’ new policy. Effective February 24, 2020, all nonimmigrants and immigrant visa applicants (family-based and employment-based), except those exempted by law, are subject to the DOS Public Charge rule.

 

All immigrant visa applicants will be required to submit a Form DS-5540, Public Charge Questionnaire. If a family unit applies together, only one form is required. On the DS-5540, applicants will provide information on income, assets, liabilities, education and skills and whether they have received public benefits in the United States.  In addition, applicants will need to submit evidence of health insurance in the United States, or that they will have evidence of health insurance within 30 days of entry and U.S. federal income tax returns if the applicant works or has previously worked in the United States. Similar to USCIS, consular officers will apply a totality of circumstances test, focusing on the applicant’s age, health, family status, assets, resources, and financial status, and education and skills to determine whether the applicant will become a public charge in the United States.

 

For nonimmigrant applicants, a consular officer may request applicants to complete the Form DS-5540 in any case where the consular officer believes that additional information is necessary to determine whether the applicant's assets, resources, and financial status are sufficient to address any concerns about eligibility on public charge grounds.  Alternatively, consular officers may ask nonimmigrant applicants any or all of the questions from Form DS-5540 necessary to make the public charge determination (including orally). In determining ineligibility under DOS Public Charge rule, a consular officer will consider the nonimmigrant visa classification sought, as it relates to the nonimmigrant applicant’s ability to financially support himself or herself during the duration of the temporary stay in the United States.

Appendix A
Public Benefits Chart Under DHS Public Charge Final Rule
Appendix B
USCIS Form I-944 & DHS Public Charge Multi-Factor Test

Founded in 2005, Goeschl Law Corporation offers comprehensive immigration services to corporations and entrepreneurs.