In an effort to address recent and ongoing changes to immigration rules and regulations, Protecting Immigrant Families (PIF) released two documents answering frequently asked questions on the proposed public charge rule and the more recent Department of Justice deportation on public charge grounds rule. While neither rule has been adopted yet, the chilling effects these proposals have had on the immigrant community already are monumental.
Public Charge FAQ
When is a public charge determination made?
An assessment of whether a person is likely to become a public charge is made at two points: when the person applies for admission to the U.S. and when the person applies for lawful permanent resident (LPR) status. There is no public charge assessment when a person applies to become a naturalized citizen.
Who is affected by the proposed public charge regulations?
The proposed regulations would affect anyone in the United States who is not exempt from public charge and is applying for admission to the country or lawful permanent resident (LPR) status. It would also affect people with non-immigrant visas who are applying to extend their visa or change its category. Decisions about people applying for admission or LPR status outside the U.S. are guided by the Foreign Affairs Manual, published by the State Department. Once the regulations become final, we expect the State Department to revise the Foreign Affairs Manual to conform to them.
How can the rule affect people who aren’t eligible for the listed benefits?
Anybody in the U.S. who is applying for admission or to adjust to LPR status, who isn’t exempt from public charge, could be affected because the public charge assessment is forward-looking. The USCIS officer is looking at whether the applicant is likely at any point in the future to become a public charge, based on an array of factors that include their income and resources, education and employment history, age and health. A person’s current benefits eligibility does not limit this inquiry, since they may become eligible for benefits in the future.
Which immigrants are exempt from public charge?
The following categories of noncitizens are not subject to a public charge test or can qualify for a waiver of that test: refugees; asylees; survivors of trafficking, domestic violence, or other serious crimes (T or U visa applicants/holders); VAWA self-petitioners; special immigrant juveniles; certain people paroled into the U.S.; and several other categories of immigrants.
Will this rule affect immigrants who are already green card holders or U.S. citizens?
The proposed rule would not affect individuals who have already become US Citizens. Lawful permanent residents (green card holders) will not be subject to a public charge inadmissibility determination when they apply to become a U.S. citizen. Under both current law and the proposed rule, green card holders who are outside the U.S. for more than 180 consecutive days (6 months) may be subject to a determination of admissibility, including a public charge assessment, when seeking to re-enter the U.S and should consult with an immigration attorney prior to departure. LPRs are also subject to an admissibility determination in cases where they have abandoned their residency, commit certain crimes, or left the country while in removal proceedings.
Who makes the decision of whether someone is likely to become a public charge?
For individuals applying to enter the US from abroad, consular officials (employed by the State Department) make the public charge determination based on criteria in the Foreign Affairs Manual (FAM). For individuals in the US applying for a green card or applying to extend/change their non-immigrant status, the public charge determination is made by USCIS based on criteria in the statute, any implementing regulations and field guidance. In some cases, individuals in the U.S. may be required to leave and go through consular processing to secure lawful permanent residence.
Is a dependent’s use of benefits considered in the immigrant’s public charge test (e.g. if a US citizen child uses Medicaid, but the noncitizen parent uses no benefits, does the child’s use of Medicaid still affect the parent’s green card application)?
No. In the proposed rule, only the applicant’s use of benefits is taken into consideration. Receipt of benefits by dependents and other household members would not be considered in determining whether the immigrant applicant is likely to become a public charge. In cases where other members of a household may be eligible for a benefit (such as SNAP or Public Housing), only benefits received by the immigrant applying for status – not their household members – would be considered.
Public Charge & Deportation FAQ
I am not a U.S. Citizen. Can the government deport me because I use public benefits?
No. Under current law, the government cannot deport or remove you just for using public benefits that you qualify to receive. In order to be deported based on public charge, all of the following would have to be true:
- You received cash welfare or long-term institutional care for reasons that existed before you came to the U.S., and
- You got the cash welfare or long-term care less than 5 years after you came to the U.S., and
- You or your sponsor have a legal debt to the government agency that gave you the cash or longterm care, and you or your sponsor got a notice from the government that you owed the debt within 5 years of entering the U.S., and
- You or your sponsor have refused to repay, and the government filed a lawsuit and won in court
Simply receiving a benefit is not enough to be deported. Even if all of the factors above are true for you, you will still be able to show that you used benefits for reasons that happened after you came to the United States – like becoming pregnant or having a decrease in income. If you can prove that your situation has changed, you will not be deportable as a public charge.
I heard that the government is going to change the rules. How will that affect me?
There are several changes that have been proposed and changes that may be proposed in the near future. However, right now, nothing has changed for public charge decisions made in the U.S. and there are legal limits on how much the rules can change. If or when proposed changes are finalized, the government will make an announcement and is likely to give 60 days’ notice before the changes could go into effect.
Remember that receipt of a public benefit for you or a family member is not, by itself, a reason to be deported. You can show that you used benefits based on a situation that came up after you entered the country.
It’s also important to keep in mind that even if changes happen, they will not affect everyone. Certain immigrants are not subject to the public charge rules.
Should I stop using public benefit programs just to be safe?
We recommend that you continue to get the help you need. Using health care and other services can help you and your family become healthier, stronger and more employable. You can stay tuned for any changes that may occur, and can consult with an immigration attorney if you have questions about your individual situation.
If your family plans to apply for a green card or visa inside the United States, we recommend that you continue to use health, housing, and nutrition programs like SNAP, Medicaid, or Section 8 housing assistance that help your family.
If your family plans to apply for a green card or visa outside of the United States, you should talk with an expert for advice on your case before making any decisions. For free or low-cost options near you, visit www.immigrationadvocates.org/nonprofit/legaldirectory.
Help is available in many languages. I am a naturalized U.S. citizen. Can I lose my citizenship if I use programs like Medicaid or food stamps?
No. U.S. citizens cannot lose their citizenship based on their lawful use of public benefits. Once you become a U.S. citizen, the government may not deport you and must let you return to the U.S. after you travel outside the country.