Under federal immigration law, a noncitizen (alien) who is likely to become a public charge is deemed inadmissible, or ineligible to be admitted to the United States as a lawful permanent resident (LPR or green card holder). Public charge determinations are made based on the totality of the circumstances for each case. In recent years, the criteria considered in public charge determinations have shifted.
Beginning in 1999, public charge guidance directed immigration officials to consider whether a noncitizen has become or is likely to become dependent on cash benefits for income maintenance or long-term institutionalization at government expense, among other factors. In 2019, during the Trump Administration, the Department of Homeland Security (DHS) issued a new federal regulation that expanded the definition of public charge to consider whether a noncitizen was "more likely than not at any time in the future" to use certain public benefits; the guidance also added consideration of certain noncash benefits. The regulation was subsequently challenged in court. The Biden Administration chose not to defend the regulation and, in March 2021, reverted to previous guidance. In September 2022, DHS published a final rule codifying a conceptualization of public charge that is similar to the 1999 guidance.
Background
U.S. immigration law has long contained exclusion and removal provisions designed to limit government spending on indigent noncitizens. Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an alien may be denied admission into the United States or adjustment to LPR status if they are "likely at any time to become a public charge." An admitted alien may be subject to removal from the United States based on a separate public charge ground of deportability, but this is rarely employed. Certain categories of aliens, such as refugees and asylees, are exempted from the public charge grounds of inadmissibility. There is no public charge determination for noncitizens applying to naturalize (become U.S. citizens).
Immigration authorities are required by statute to, at a minimum, consider the following factors when making public charge determinations: age; health; family status; assets, resources, and financial status; and education and skills. Immigration officers may also consider an affidavit of support submitted by an alien's petitioner (if applicable) as well as the alien's prospective immigration status and expected period of admission. Together, these factors comprise a totality of the circumstances test for public charge determinations.
1999 Field Guidance
Although the INA does not explicitly define the term public charge, beginning in 1999, agency guidance defined it to mean a person who is or is likely to become "primarily dependent on ... public cash assistance for income maintenance or ... institutionaliz[ed] for long-term care at government expense." The 1999 guidance identified four types of public benefits for which past, current, or future receipt may be considered as part of the totality of the circumstances test:
2019 Rule
During the Trump Administration, public charge criteria were revised in a DHS final rule published August 14, 2019. The rule added consideration of the receipt of certain noncash benefits in a public charge determination. These included the Supplemental Nutrition Assistance Program (SNAP), Medicaid (with exceptions), and certain public housing benefits.
The 2019 rule explicated how DHS's U.S. Citizenship and Immigration Services (USCIS) officers should evaluate each of the statutory factors, setting new standards and evidence for each factor. There were four "heavily weighted" negative factors: unemployment, past receipt of (or approval to receive) public benefits for more than 12 of the previous 36 months, inability to cover medical costs, and prior public charge determination; and three heavily weighted positive factors: household income or assets of at least 250% of federal poverty guidelines (FPG), individual annual income of at least 250% of the FPG, and having private health insurance.
Supporters of the 2019 rule contended that it reflected a more contemporary consideration of government benefits and would save taxpayers money. Others opposed the rule, and analysts found decreased participation in and avoidance of public benefits programs among eligible noncitizens and immigrant families, including those with U.S. citizen children. Such avoidance was associated with concerns about future green card applications and perceived risks of immigration enforcement.
The regulation, which took effect on October 15, 2019, faced several legal challenges. After the Biden Administration took office, DHS chose not to defend the rule in court, and Executive Order 14012 ordered review of agency actions on public charge inadmissibility. USCIS stopped applying the 2019 rule in March 2021 and reverted to the 1999 field guidance.
2022 Final Rule
On September 9, 2022, DHS published a new final rule in the Code of Federal Regulations to codify a definition of the phrase likely at any time to become a public charge based on a standard similar to the 1999 guidance. Together with the statutory factors in the INA, DHS considers past or current receipt of the following public benefits in a public charge determination:
The 2022 rule specifies that USCIS will not consider noncash benefits. It also states that participation in certain cash assistance programs (e.g., childcare assistance or the Low Income Home Energy Assistance Program) would not be considered in public charge determinations because it would not connote primary dependence on the government for subsistence. The determination is still based on the totality of circumstances, but, under this new rule, DHS is to no longer designate certain factors as "heavily weighted." Policymakers may conduct oversight over the implementation of the new final rule and evaluate whether it is accomplishing its intended purpose.