The public charge ground of inadmissibility refers to the barring of a foreign national from obtaining lawful permanent resident status if he or she is likely to become a public charge (primarily dependent on government subsistence). Under the new rule, USCIS will review:
- Your age, health, family status, financial status (including assets and resources), education, and skills;
- Whether a sponsor has submitted Form I-864, Affidavit of Support Under Section 213A of the INA, for you (when required); and
- Whether you have received or are receiving:
- Supplemental Security Income (SSI);
- Cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF);
- State, tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or
- Long-term institutionalization at government expense.
However, under the Violence Against Women Reauthorization Act of 2013, immigrant crime victims who pursue immigration relief such as VAWA self-petitioning, battered spouse waiver, VAWA cancellation of removal, VAWA suspension of deportation, U visa and T visa are exempt from public charge ever affecting their applications for lawful permanent residency or any other immigration benefit. Thus, immigrant survivors can seek and receive publicly funded healthcare or other benefits for themselves and their children without any concern being determined to be a public charge.
The final rule will be effective on December 23, 2022 and will apply to applications postmarked (or electronically submitted) on or after that date. Until the effective date of the final rule, USCIS will continue to apply the public charge ground of inadmissibility consistent with the 1999 Interim Field Guidance. The new regulation 8 CFR § 212.23 added a comprehensive list of public charge exemptions and waivers, including VAWA Self-Petitioners, T visa holders, U visa holders, and SIJS children, clarifying any uncertainty regarding the exemption of these visa categories.
The new rule, which vacates the 2019 rule, no longer includes supplemental public health benefits, such as Medicaid and nutritional assistance, in the public charge inadmissibility determination. The benefits excluded from public charge consideration are:
- benefits received by your family members
- food stamps- Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs;
- Children’s Health Insurance Program (CHIP);
- Medicaid (other than for long-term institutionalization at government expense);
- public housing benefits;
- any benefits related to immunizations or testing for communicable diseases;
- or other supplemental or special-purpose benefits.
In addition, only benefits received by the noncitizen will be considered for public charge determination. Immigrant victims whose children or family members are receiving benefits will not be affected that applicant’s ability to receive benefits. The current public charge rule is based on the 1999 policies bolded below.
Public Charge Materials:
DHS Policies and Materials
- DHS Public Charge Ground of Inadmissibility – Final Rule (September 9, 2022)
- DHS Publishes Fair and Humane Public Charge Rule (September 8, 2022)
- USCIS Public Charge Resources
- Public Charge Field Guidance Memo – US DOJ (May 20,1999)
- USCIS Q&A on Public Charge (May 25,1999)
- USCIS Public Charge Fact Sheet (May 25, 1999)
- Field Guidance on Deportability and Inadmissibility on Public Charge (March 26, 1999)
- VAWA Reauthorization 2013 Changes to U Visa and Adjustment of Status
- Immigrant Crime Victims and Public Charge: Post-VAWA 2013 (August 19, 2019)
NIWAP Tools for Determining Public Charge
- The Impact of the 2020 Public Charge Rule on Transitional Housing
- Public Charge Test for Benefits Flow Chart
- Infographic Public Charge Test for Housing Benefits (October 12, 2020)
Affidavits of Support Enforcement in State Courts
- Affidavits of Support and Enforceability Bench Card (September 30, 2021)
- ‘Til Death Do Us Part: Affidavits of Support and Obligations to Immigrant Spouses (October 2012)
- Bench Card for State Court Judges on Common Issues that Arise From Parties’ Immigration Status: Economic Remedies (March 10, 2022)
- Kumar v. Kumar Decision California Court of Appeals (2017)
- Amicus Curiae brief from National Immigrant Women’s Advocacy Project in Support of Appellant (September 16, 2016) Ashlyne Kumar
- Kumar vs. Kumar Success in Court (August 2017)
For immigrant crime victims and other immigrants who pursue other paths to lawful permanent residency, it is important to note that, with one exception, obtaining healthcare subsidies that they or their children are eligible to receive will not cause the immigrant to be denied lawful permanent residency on the basis of public charge. Medicaid, Medicare, and other similar health services are excluded from the publicly funded programs DHS is allowed to consider when making public charge determinations. The only form of healthcare benefit that would lead to a finding that the immigrant is likely be a public charge and should, therefore, be inadmissible for lawful permanent residency would be institutionalization for long-term care at the government’s expense, since the immigrant would be primarily dependent on the government for support for such an extended period of time.
For further information on immigrant crime victims and public charge, see Catherine Longville & Leslye Orloff, Immigrant Crime Victims and Public Charge: Post-VAWA 2013 (June 20, 2014)
The Public Charge Field Guidance and Policies that codify public charge law prior to the VAWA 2013 amendments that apply in all cases other than VAWA, T and U visa applicants
“Deeming” refers to the practice of counting the income of an immigrant’s sponsor together with the immigrant’s own income in determining financial eligibility for state or federal public benefits programs. Deeming applies to spouses and children with family based immigration cases. Certain immigrants are exempt from sponsor deeming. Exempt immigrants include immigrants who are not required to have sponsors, including, but not limited to: refugees; asylees; parolees; Cuban Haitian entrants; immigrants who have naturalized; immigrants whose sponsor has died; certain qualified battered spouses and children; indigent immigrants who would go hungry or homeless without assistance; and immigrants who have or can be credited with 40 quarters of work credit. Additionally, for states that choose to provide subsidized healthcare to lawfully residing children and/or pregnant women, deeming does not apply.
Exemption from Deeming for Certain Qualified Battered Immigrants
When the person who sponsored the immigrant is also the immigrant’s abusive spouse or parent, the immigrant victim will not be able to access the income of the abuser when applying for benefits. Counting the abusive spouse or parent’s income as income that is attributed to the immigrant victim results in the immigrant victim losing access to public benefits eligibility that Congress intended they receive.
To address this issue, Congress included a specific exemption from deeming for certain qualified battered immigrants. Qualified battered immigrant spouses and children of citizen and lawful permanent residents can be exempt for one year from the deeming requirements if:
- The battery or extreme cruelty took place in the United States;
- The abuser was the spouse, parent, or member of spouse’s or parent’s family;
- There is a “substantial connection between the battery or extreme cruelty and the need for the healthcare benefit;” and
- The victim no longer resides with the abuser.
This qualified battered immigrant exemption can extend beyond a year, the battered immigrant must demonstrate that:
- An order of a judge or a prior DHS determination has recognized the battery or extreme cruelty; and
- There continues to be a substantial connection between the abuse and battery suffered and the need for the benefits sought.
For more information on the issue of deeming, and on the issue of the battered immigrant exemption to deeming, please see the following resources:
- Catherine Longville and Leslye Orloff, Public Benefits: What is “Deeming” and What are its Exceptions
- Soraya Fata, Leslye E. Orloff and Monique Drew, Access to Programs and Services that Can Help Victims of Sexual Assault and Domestic Violence
- Tanya Broder and Jonathan Blazer, Overview of Immigrant Eligibility for Federal Programs (October 2011)
© 2015 National Immigrant Women’s Advocacy Project. The contents of this publication may be reprinted. Any reprinting must be accompanied by the following acknowledgement: This material was reprinted from the National Immigrant Women’s Advocacy Project, American University, Washington College of Law.
This project was developed under grant number 2013-TA-AX-K009 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions and recommendations expressed in this program are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.