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 long been part of U.S. immigration law. It is one of the grounds of inadmissibility for new immigrants. If someone is found inadmissible, they cannot be granted admission to the United States or adjust status. All family-based green card applications are subject to these rules, though some other categories may be exempt. The current public charge rule, issued by the Department of Homeland Security, took effect on December 23, 2022.
Who Public Charge Affects
What counts as subsistence under public charge?
Almost every new immigrant is subject to the public charge ground of inadmissibility. Being subject to the rule is not a negative factor. It simply means that the U.S. government will use this test to determine if you are admitted. For most people, it isn't a problem. Certain people are exempt from the rule.
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 eligible for the 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.
Exemptions to Public Charge Rule
Most immigrants are subject to the rule, but certain classes of immigrants are exempted from the public charge test. This includes: asylees, refugees, special immigrant juveniles, Afghan and Iraqi interpreters, and VAWA self-petitioners.
Public Charge under the First Trump Administration
What is Form I-944, Declaration of Self Sufficiency?
There has been confusion about the public charge rule because of temporary changes during the first Trump administration. From February 24, 2020, through March 8, 2021, a stricter version of the rule was in effect. Often criticized as a “wealth test” for immigrants, it required applicants to meet income and asset-based criteria. During this period, USCIS required most adjustment of status applicants to file Form I-944 (Declaration of Self Sufficiency), and U.S. embassies required immigrant visa applicants to submit Form DS-5540. Both forms are now obsolete.
On March 9, 2021, the Biden administration ended these changes and restored the long-standing version of the rule that existed before the Trump administration. Since then, applicants no longer need to file Form I-944 or provide the supporting evidence once required by that form.
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 they are 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 their 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. You can also do a quick assessment of income qualifications by using our Visa Sponsor Income Calculator.
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:
- Age
- Health
- Family status (household size)
- Assets, resources, and financial status
- Education
- Skills
- 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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