Understanding How the Public Charge Rule Works

Due to the current pandemic of COVID-19 many areas of daily life in the U.S. and in the world have been affected. Within a few weeks, the uninviting reality of COVID-19 brought panic, anxiety, and confusion. After continuous pressure from advocates and lawmakers, the U.S. Citizenship and Immigration Services department provided a statement stipulating that treatment or preventative services for symptoms similar to COVID-19 would not negatively impact any foreigner as part of a future Public Charge examination. Nevertheless, it seems as if this action provides security for the U.S. during a pandemic as dangerous as COVID-19. The public charge regulation makes foreigners who presently receive Medicaid and other benefits ineligible for a U.S. Green Card and other visas and in some instances may be subject to deportation proceedings.

Background of the Public Charge Rule

In the early 1800s, Congress declared that foreigners were not allowed into the U.S. if they are unable to support themselves without depending on the U.S. government making them a public charge. Since 1996, federal laws have established that foreigners must be able to provide for themselves and their family members. In 2019, the U.S. Department of Homeland Security (DHS) issued a final stipulation that DHS will decide if a foreign national applying to enter the U.S. or for an adjustment of status under a legal resident status is likely to become a public charge. On February 24, 2020, the USCIS began putting into effect the Inadmissibility on Public Charge Rule, which is also applicable to individuals applying for an adjustment of status as well as those foreigners seeking an extension for their nonimmigrant visa or looking for a change of status. Individuals with nonimmigrant visas are also required to apply for an extension under the same visa category or those applying for different nonimmigrant visa types to prove as a condition of approval. Presently the U.S. is not administering this rule for nonimmigrant visa beneficiaries, but is prone to change anytime.

The Public Charge Regulation is Not Applicable to a Select Few

As shown below the Public Charge Rule does not apply:

 - Persons with U.S. Citizenship status even if they are related to nonnative who has been resolved to be inadmissible by the Public Charge Rule

 - Foreigners who Congress has excused from being a public charge are:

  • Asylees
  • Refugees
  • Afghans and Iraqis under special immigrant statuses
  • Select non immigrant victims of human trafficking with (T and U Visas)
  • Beneficiaries of the Violence Against Women Act (VAWA)
  • Special Immigrant Juveniles (SIJs)
  • Those granted a waiver of public charge inadmissibility by DHS

Benefits Under Review by the Public Charge Rule

The Public Charge Rule will evaluate the following benefits:

  • Supplemental Nutrition Assistance Program (previously known as Food Stamps)
  • Section 8 Housing Assistance Project
  • Section 8 Project-Based Rental Support as well as Moderate Renovations
  • Public Housing under Section 9 of the Housing Act of 1937, 42 U.S.C 1437 et seq
  • All forms of Medicaid funded by the federal government
  • Any state, federal, local or tribal financial aid for income maintenance, etc

Compensations Not Considered by the Public Charge Rule

- Benefits acquired by U.S. service members if the service member has a qualifying public benefit while the foreigner is or was enlisted in the U.S.              Armed Forces or is or was serving in active duty in any of the Ready Reserve elements of the U.S. Armed Forces.

- Benefits obtained by spouses or children of U.S. Service members as shown above

- Benefits procured by certain children born to or adopted by Americans overseas

- Particular Medicaid Benefits obtained:

  • For medicament of an urgent medical condition
  • As services or benefits offered linked with persons with the Disabilities Education Act
  • As school-based services or welfare offered to foreigners who are at or below the maximum age eligible for secondary education as approved by the state or local law
  • By aliens below age 21
  • By pregnant women and women within the 60 day period starting at the end of their pregnancy
  • Benefits collected by lawful guardians

If you think you might be deemed a public charge and your immigration status is in jeopardy do not hesitate in getting the help you need. You will stand a better chance at resolving this issue if you seek assistance from a local attorney

Find an Immigration Lawyer near you to discuss your Situation