The Public Charge Rule
Public Charge for a Green Card
What is public charge?
In short, the U.S. government defines a public charge as a person who is likely at any time to become primarily dependent on the government for subsistence.
A public charge rule has been an element of immigration law for a long time. Public charge is one of the grounds of inadmissibility for new immigrants. If an individual is inadmissible, admission to the United States or adjustment of status is not granted. All family-based green card applications are subject to these grounds, but other categories may be exempt. Most recently, the Department of Homeland Security issued a public charge rule that became effective on December 23, 2022.
Who Public Charge Affects
What counts as subsistence under public charge?
Benefits That Count Under the Rule
We've already established that there is potentially a problem for a person who is likely at any time to become primarily dependent on the government for subsistence. So what exactly is subsistence? Subsistence can include:
- Public cash assistance for income maintenance
- SSI (Supplemental Security Income)
- TANF (Temporary Assistance for Needy Families)
- General assistance
- Long-term institutionalized care paid for by Medicaid
Most people who are applying for a green card have never been eligibility for these benefits that could count. Benefits received by a family member do not count in the public charge assessment unless it is the sole source of family support. Also, an individual must actually receive the benefit. Filing the application for a benefit does not count as receipt of public benefits.
Benefits That Don't Count
Most public benefits programs do not trigger public charge. For example, non-cash benefits, disaster relief (i.e. pandemic relief measures), unemployment insurance payments, tax credits, and stimulus checks, don't count. The Immigration Legal Resource Center compiled a list of public benefits programs that are safe to use.
Certain classes of immigrants are exempted from the public charge test. This includes: asylees, refugees, special immigrant juveniles, Afghan and Iraqi interpreters, Afghan and Iraqi nationals, and VAWA self-petitioners.
Public Charge under the Trump Administration
What is Form I-944, Declaration of Self Sufficiency?
Some confusion surrounds the public charge rule due to temporary changes during the Trump administration. The Trump administration changed the definition of public charge. However, Trump era changes to public charge are no longer in effect. From approximately February 24, 2020, through March 8, 2021, the Trump administration's stricter, more onerous version of the public charge rule was in effect. Criticized as a "wealth test" for immigrants, this version of the rule forced intending immigrants to qualify on several income and/or wealth-based criteria. During this time, USCIS required most adjustment of status applicants to submit Form I-944, Declaration of Self Sufficiency. U.S. embassies generally required immigrant visa applicants to submit the DS-5540 Public Charge Questionnaire.
The Biden administration facilitated a return to the long-standing version of the public charge rule that was already in place prior to the Trump administration. On or after March 9, 2021, applicants should not provide Form I-944 or any evidence or documentation required on that form with their Form I-485.
Comparison of Public Charge Definition Under 2019 and 2022 Rules
|Previous 2019 Rule||Current 2022 Rule|
|Public Charge Definition||More likely than not at any time in the future to receive 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).||Likely to become primarily dependent on the federal government as demonstrated by use of cash assistance programs or government-funded institutionalized long-term care.|
|Programs Considered in Public Charge Determinations|
|Heavily Weighted Negative Factors||Not specified. Statutory minimum factors (age, family status, health, education, income and resources) must be considered in their totality.|
|Heavily Weighted Positive Factors|
Form I-864, Affidavit of Support
A Way to Remove the Public Charge Grounds of Inadmissibility
Under current guidance, Form I-864, Affidavit of Support, is typically sufficient to overcome the public charge ground of inadmissibility.
In fact, virtually all family-based adjustment of status applications will require the filing of Form I-864, Affidavit of Support. The individual who petitioned the green card applicant must submit Form I-864 and act as a financial sponsor. However, other household members and/or a joint sponsor can join the petitioning sponsor to strengthen support. The purpose for filing Form I-864 is to remove the public charge ground of inadmissibility.
USCIS reviews the annual income of the sponsor providing support to determine if he or she is able to support the applicant. Under the statute, the minimum income to establish a sufficient Form I-864 is generally 125 percent of the federal poverty guidelines (100 percent for active duty military) based on the sponsor’s household size plus the total number of sponsored immigrants and dependents supported by the sponsor. A sufficient Affidavit of Support is a positive consideration in the totality of the circumstances. However, USCIS considers other relevant factors related to the sponsor’s ability to support their household and the sponsored immigrant(s) even if his or her income meets the 125 percent of the FPG threshold. An officer will give greater positive weight to a Form I-864 submitted by a sponsor who has greater income and assets available than the minimum required by the statute.
However, several factors can potentially dilute this support, giving it less positive weight. Circumstances that can reduce the positive weight of an otherwise sufficient Affidavit of Support include the sponsor's:
- Receipt of public benefits in the United States
- Previous bankruptcy
- Receipt of a fee waiver for immigration benefits
- Previous and outstanding sponsorship of multiple applicants
Income Requirements for Sponsors
Is the public charge rule a problem form me?
When preparing Form I-864, it is generally necessary that the household income be at a level equal to or greater than 125 percent of the federal poverty guidelines (FPG):
- Your sponsor's income and assets are at or above 125 percent of the FPG
A sufficient Affidavit of Support is a positive consideration in the totality of the circumstances. Greater positive weight will be given to an Affidavit of Support from a sponsor who has greater income and assets available than the minimum.
- Your sponsor's support is compromised
An Affidavit of Support that does not meet the minimum (125 percent of the FPG) is insufficient and does not satisfy the requirement. Further, an otherwise sufficient Affidavit of Support will be given less weight if the sponsor's support is compromised.
If a sponsor's support is not sufficient to exceed the threshold, there are ways to overcome this problem. The sponsor may be able to include certain household members' income. The intending immigrant can also add a joint sponsor. To learn more about income requirements and preparing the affidavit, review our guide for Form I-864, Affidavit of Support.
Totality of the Circumstances
Is one factor enough to deny under public charge?
The government's rule provides clarity for what's considered when determining public charge. There are specific programs that count. Current or past receipt of benefits that count will not, alone, be sufficient basis for denial. Immigration officers must consider the totality of the circumstances. At a minimum, they will consider:
- Family status (household size)
- Assets, resources, and financial status
- Affidavit of Support
In summary, the totality of the circumstances means that the existence or absence of a particular factor is not enough by itself to deny.
How CitizenPath Helps You Overcome Public Charge
How do I prepare Form I-864?
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