March 19Updated August 4, 2020
Immigration: Public Charge
Immigration law in the United States has long contained
exclusion and removal provisions designed to limit
government spending on indigent non-U.S. nationals
(aliens). . (NonU.S. nationals are referred to as aliens in immigration law.)
Under the Immigration and Nationality Act (INA),
an alien
may be denied admission into the United States or
lawful lawful
permanent resident (LPR) status if he or she is
“likely at
any time to become a public charge” (8 U.S.C.
§1182(a)(4)). An admitted alien may also be subject to
removal from the United States based on a separate public
charge ground of deportability, but this is rarely employed.
The Department of Homeland Security (DHS) and the
Department of State (DOS) have primary responsibility for
implementing the public charge ground of inadmissibility.
DHS makes public charge inadmissibility determinations
for aliens seeking admission or adjustment from a
temporary status to LPR status. DOS consular officers
make public charge inadmissibility determinations for
aliens abroad applying for U.S. visas , based on guidance in
the Foreign Affairs Manual (FAM). While this applies to
both immigrant and nonimmigrant (i.e., temporary) visas, in
practice it is rarely employed for nonimmigrant visas.
Certain categories of aliens, such as refugees and asylees,
are exempted from the public charge ground of
inadmissibility. Moreover, itIt is not applicable to aliens who
are are
applying for citizenship (i.e., naturalization).
Defining Public Charge
Because the INA does not define the term public charge,
the determination of whether an alien seeking a visa or
adjustment of status is inadmissible on public charge
grounds turns largely on standards set forth in agency
guidance materials. Because both DHS and DOS are
primarily responsible for implementing the INA’s public
charge provisions, both agencies’ evolving definitions of
public charge must be considered.
Since 1999, agency guidance (formerly the Department of
Justice’s Immigration and Naturalization Service, now
DHS) has defined public charge to mean a person who is or
is likely to become primarily dependent on public cash
assistance or government-funded institutionalization for
long-term care. From 1999-2018, DOS’s FAM followed
DHS’ guidance.
In January 2018, DOS revised the FAM to instruct consular
officers to consider an alien’s “past or current receipt of
public assistance of any type”—including all types of state
and federal noncash benefits—when determining whether
an alien is likely to become a public charge. While this did
not change the definition of public charge (i.e., it was still
defined as someone dependent on cash assistance for
income maintenance or government-funded long-term
care), it did change the scope of public benefits that
consular officers must consider when applying that
definition (i.e., noncash benefits as well as cash benefits).
On August 15, 2019, DHS published a final rule that redefines public charge as someone “more likely than not at
any time in the future to receive one or more public benefits
... for more than 12 months within any 36-month period.”
This rule also changed how factors are considered in public
charge determinations (see below). It was set to take effect
on October 15, 2019, but multiple lawsuits and preliminary
injunctions halted the rule. However, federal appellate
courts and the U.S. Supreme Court eventually lifted all of
these injunctions, allowing DHS to implement the rule
while litigation over its legality continues (for more
information on this litigation, see CRS Legal Sidebar
LSB10341, DHS Final Rule on Public Charge: Overview
and Considerations for Congress, by Ben Harrington). On
February 24, 2020, DHS began implementing the final rule
nationwide. However, the rule was enjoined again on July
29, 2020 (see “COVID-19 Pandemic” below).
On October 11, 2019, DOS published an interim final rule
on the public charge ground of inadmissibility that largely
aligns with DHS’ rule. The DOS rule was set to take effect
on October 15, 2019, but was delayed until the Office of
Management and Budget (OMB) approved the Public
Charge Questionnaire (DS-5540). On February 12, 2020,
DOS “published a notice of intent in the Federal Register
seeking emergency OMB processing and approval for the
DS-5540 in order to implement the Department’s interim
final rule by February 24, 2020.” On February 20, 2020,
DOS announced that OMB had approved the DS-5540. On
February 21, 2020, the FAM was updated to reflect this
new rule. Thus, DOS implemented the interim final rule on
February 24, 2020, the same day as DHS. However, the rule
was enjoined on July 29, 2020 (see “COVID-19 Pandemic”
below).
Designated Benefit Programs
The DHS final rule, and the subsequent DOS interim final
rule, expanded the list of public benefits considered in
public charge determinations. The nine programs
designated in the new rules include four that were included
under the 1999 guidelines: Supplemental Security Income
(SSI), Temporary Assistance for Needy Families (TANF),
state general assistance, and benefits provided for
institutionalized long-term care; as well as five additional
programs: the Supplemental Nutrition Assistance Program
(SNAP), Medicaid (with exceptions), Project-Based Rental
Assistance, the Housing Choice Voucher Program, and
Public Housing.
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Immigration: Public Charge
Benefits received by certain groups, such as members of the
U.S. Armed Forces and their spouses and children, do not
count as public benefits under the regulations. Additionally,
DHS will only consider benefits directly received by the
alien for the alien’s own benefit; it will not consider
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Immigration: Public Charge
benefits received by a legal guardian on behalf of another
(e.g., a U.S. citizen child).
Factors Considered in Public Charge
Determinations
The INA requires immigration authorities to consider, at a
minimum, the following factors when making public charge
determinations: age; health; family status; assets, resources
and financial status; and education and skills (8 U.S.C.
§1182(a)(4)(B)). Immigration officers may also consider an
affidavit of support submitted by an alien’s petitioner as
well as the alien’s prospective immigration status (e.g.,
immigrant or nonimmigrant) and expected period of
admissions as factors. Together, these factors make up what
is known as the totality of the circumstances test for public
charge determinations.
The new rules explicate how officers should evaluate each
of the statutory factors, setting new standards and required
evidence for each factor. In addition, officers are to
consider a set of heavily weighted factors. There are four
heavily weighted negative factors: (1) unemployment, (2)
past receipt of (or approval to receive) public benefits for
more than 12 of the previous 36 months, (3) inability to
cover medical costs, and (4) prior public charge
determination. In addition, there are three heavily weighted
positive factors: (1) household income or assets of at least
250% of federal poverty guidelines (FPG), (2) individual
annual income of at least 250% of the FPG, and (3) having
private health insurance.
Impact
Table 1. DOS Refusals of Immigrant Visas (IV) on
Public Charge (PC) Grounds of Inadmissibility
Fiscal Year
IV Refusal on
PC Grounds
Percentage of
All IV Refusals
2015
897
0.3%
2016
1,076
0.3%
2017
3,237
1%
2018
13,450
3%
2019
20,941
5%
Source: DOS, Report of the Visa Office 2015-2019, Table XX:
Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for
Refusal Under the Immigration and Nationality Act) Fiscal Years
2015, 2016, 2017, 2018, and 2019.
Policy Considerations
Many observers are concerned that these new rules could
have a
chilling effect on the use of public benefits by individuals
individuals not subject to the rules (e.g., LPRs, U.S. citizen
children). It
The new policy could deter enrollment in benefit
programs for those who
are eligible and negatively affect public health. In light of
the COVID-19 pandemic, some fear that these rules will
discourage immigrants from utilizing public health care
systems, which could increase the spread of the novel
coronavirus. However, USCIS announced that it will not
consider any testing or treatment for COVID-19 as part of
the public charge inadmissibility determination.
public health. Others are concerned about the impact of the
new rules on the public charge determination process; they
fear that individual officers now have a larger degree of
discretion, which could lead to inconsistent outcomes.
Some also fear the new rules will increase processing times
and backlogs.
Supporters of the new final rules say they uphold American
values of self-sufficiency, ensure that the availability of
public benefits will not incentivize immigration to the
United States, and save taxpayers money.
COVID-19 Pandemic
Impact
The number of aliens denied visas or adjustment of status
due to a determination of inadmissibility on public charge
grounds is difficult to quantify precisely. DHS does not
compile statistics and share publicly the number of
adjustment of status applications denied by particular
grounds of inadmissibility. Nevertheless, to understand the
scope of those who could be subject to the new DHS rule,
in FY2019 DHS approved 576,872 applications for
adjustment of status and denied 76,215.
Others are concerned about the impact of the new rules on
the public charge determination process; they fear that
individual officers now have a larger degree of discretion,
which could lead to inconsistent outcomes. Some also fear
it will increase processing times and backlogs.
In contrast, DOS reports on the total number of immigrant
and nonimmigrant visa refusals, and also breaks out the
refusals by specific grounds of inadmissibility. However,
given that DOS’ interim final rule took effect on February
24, 2020, data are not yet available to assess its impact.
Nevertheless, since the January 2018 FAM changes, which,
like DOS’ new rule, included consideration of prior use of
noncash benefits for public charge determinations, there has
been a marked increase in the refusal of immigrant visa
applications on public charge grounds (see Table 1). To put
these numbers in context, in FY2019 DOS issued 462,422
immigrant visas and denied 298,017 immigrant visa
applications.
Proposed Legislation in the 116th
Congress
Supporters of the final rules believe they uphold American
values of self-sufficiency, ensure that the availability of
public benefits will not incentivize immigration to the
United States, and save taxpayers money.
Legislative proposals aimed to limit the implementation of
the public charge rules have been introduced in the 116th
Congress. H.R. 3222, the No Federal Funds for Public
Charge Act of 2019, would prohibit the use of federal funds
(including fees) “to implement, administer, enforce, or
carry out” these rules. Companion legislation—the Protect
American Values Act (S. 2482)—has been introduced in
In light of the Coronavirus Disease 2019 (COVID-19)
pandemic, some observers fear that these rules will
discourage immigrants from utilizing public health care
systems, which could increase the spread of COVID-19.
USCIS announced it will not consider any testing or
treatment for COVID-19 as part of the public charge
inadmissibility determination. However, a New York
federal judge found this announcement “plainly
insufficient.” On July 29, 2020, the court issued nationwide
injunctions blocking the DHS public charge rule “for any
period during which there is a declared national health
emergency in response to the COVID-19 outbreak” and the
DOS public charge rule until further court order.
Proposed Legislation in the 116 th
Congress
Legislation to limit the implementation of the public charge
rules has been introduced in the 116th Congress. H.R. 3222,
the No Federal Funds for Public Charge Act of 2019, would
prohibit the use of federal funds (including fees) “to
implement, administer, enforce, or carry out” these rules.
Companion legislation—the Protect American Values Act
(S. 2482)—has been introduced in the Senate.
Abigail F. Kolker, Analyst in Immigration Policy
IF11467
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Immigration: Public Charge
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