March 19, 2020
Immigration: Public Charge
Immigration law in the United States has long contained
consular officers must consider when applying that
exclusion and removal provisions designed to limit
definition (i.e., noncash benefits as well as cash benefits).
government spending on indigent non-U.S. nationals
(aliens). Under the Immigration and Nationality Act (INA),
On August 15, 2019, DHS published a final rule that re-
an alien may be denied admission into the United States or
defines public charge as someone “more likely than not at
lawful permanent resident (LPR) status if he or she is
any time in the future to receive one or more public benefits
“likely at any time to become a public charge” (8 U.S.C.
... for more than 12 months within any 36-month period.”
§1182(a)(4)). An admitted alien may also be subject to
This rule also changed how factors are considered in public
removal from the United States based on a separate public
charge determinations (see below). It was set to take effect
on October 15, 2019, but multiple lawsuits and preliminary
charge ground of deportability, but this is rarely employed.
injunctions halted the rule. However, federal appellate
The Department of Homeland Security (DHS) and the
courts and the U.S. Supreme Court eventually lifted all of
Department of State (DOS) have primary responsibility for
these injunctions, allowing DHS to implement the rule
implementing the public charge ground of inadmissibility.
while litigation over its legality continues (for more
DHS makes public charge inadmissibility determinations
information on this litigation, see CRS Legal Sidebar
for aliens seeking admission or adjustment from a
LSB10341, DHS Final Rule on Public Charge: Overview
temporary status to LPR status. DOS consular officers
and Considerations for Congress, by Ben Harrington). On
make public charge inadmissibility determinations for
February 24, 2020, DHS began implementing the final rule
aliens abroad applying for U.S. visas, based on guidance in
nationwide.
the Foreign Affairs Manual (FAM). While this applies to
both immigrant and nonimmigrant (i.e., temporary) visas, in
On October 11, 2019, DOS published an interim final rule
practice it is rarely employed for nonimmigrant visas.
on the public charge ground of inadmissibility that largely
Certain categories of aliens, such as refugees and asylees,
aligns with DHS’ rule. The DOS rule was set to take effect
are exempted from the public charge ground of
on October 15, 2019, but was delayed until the Office of
inadmissibility. Moreover, it is not applicable to aliens who
Management and Budget (OMB) approved the Public
are applying for citizenship (i.e., naturalization).
Charge Questionnaire (DS-5540). On February 12, 2020,
DOS “published a notice of intent in the Federal Register
Defining Public Charge
seeking emergency OMB processing and approval for the
Because the INA does not define the term public charge,
DS-5540 in order to implement the Department’s interim
the determination of whether an alien seeking a visa or
final rule by February 24, 2020.” On February 20, 2020,
adjustment of status is inadmissible on public charge
DOS announced that OMB had approved the DS-5540. On
grounds turns largely on standards set forth in agency
February 21, 2020, the FAM was updated to reflect this
guidance materials. Because both DHS and DOS are
new rule. Thus, DOS implemented the interim final rule on
primarily responsible for implementing the INA’s public
February 24, 2020, the same day as DHS.
charge provisions, both agencies’ evolving definitions of
public charge must be considered.
Designated Benefit Programs
The DHS final rule, and the subsequent DOS interim final
Since 1999, agency guidance (formerly the Department of
rule, expanded the list of public benefits considered in
Justice’s Immigration and Naturalization Service, now
public charge determinations. The nine programs
DHS) has defined public charge to mean a person who is or
designated in the new rules include four that were included
is likely to become primarily dependent on public cash
under the 1999 guidelines: Supplemental Security Income
assistance or government-funded institutionalization for
(SSI), Temporary Assistance for Needy Families (TANF),
long-term care. From 1999-2018, DOS’s FAM followed
state general assistance, and benefits provided for
DHS’ guidance.
institutionalized long-term care; as well as five additional
programs: the Supplemental Nutrition Assistance Program
In January 2018, DOS revised the FAM to instruct consular
(SNAP), Medicaid (with exceptions), Project-Based Rental
officers to consider an alien’s “past or current receipt of
Assistance, the Housing Choice Voucher Program, and
public assistance of any type”—including all types of state
Public Housing.
and federal noncash benefits—when determining whether
an alien is likely to become a public charge. While this did
Benefits received by certain groups, such as members of the
not change the definition of public charge (i.e., it was still
U.S. Armed Forces and their spouses and children, do not
defined as someone dependent on cash assistance for
count as public benefits under the regulations. Additionally,
income maintenance or government-funded long-term
DHS will only consider benefits directly received by the
care), it did change the scope of public benefits that
alien for the alien’s own benefit; it will not consider
https://crsreports.congress.gov

---

link to page 2 Immigration: Public Charge
benefits received by a legal guardian on behalf of another
Table 1. DOS Refusals of Immigrant Visas (IV) on
(e.g., a U.S. citizen child).
Public Charge (PC) Grounds of Inadmissibility
Factors Considered in Public Charge
Determinations
IV Refusal on
Percentage of
Fiscal Year
PC Grounds
All IV Refusals
The INA requires immigration authorities to consider, at a
minimum, the following factors when making public charge
2015
897
0.3%
determinations: age; health; family status; assets, resources
2016
1,076
0.3%
and financial status; and education and skills (8 U.S.C.
§1182(a)(4)(B)). Immigration officers may also consider an
2017
3,237
1%
affidavit of support submitted by an alien’s petitioner as
well as the alien’s prospective immigration status (e.g.,
2018
13,450
3%
immigrant or nonimmigrant) and expected period of
2019
20,941
5%
admissions as factors. Together, these factors make up what
is known as the totality of the circumstances test for public
Source: DOS, Report of the Visa Office 2015-2019, Table XX:
charge determinations.
Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for
Refusal Under the Immigration and Nationality Act) Fiscal Years
The new rules explicate how officers should evaluate each
2015, 2016, 2017, 2018, and 2019.
of the statutory factors, setting new standards and required
Policy Considerations
evidence for each factor. In addition, officers are to
consider a set of heavily weighted factors. There are four
Many are concerned that these new rules could have a
heavily weighted negative factors: (1) unemployment, (2)
chilling effect on the use of public benefits by individuals
past receipt of (or approval to receive) public benefits for
not subject to the rules (e.g., LPRs, U.S. citizen children). It
more than 12 of the previous 36 months, (3) inability to
could deter enrollment in benefit programs for those who
cover medical costs, and (4) prior public charge
are eligible and negatively affect public health. In light of
determination. In addition, there are three heavily weighted
the COVID-19 pandemic, some fear that these rules will
positive factors: (1) household income or assets of at least
discourage immigrants from utilizing public health care
250% of federal poverty guidelines (FPG), (2) individual
systems, which could increase the spread of the novel
annual income of at least 250% of the FPG, and (3) having
coronavirus. However, USCIS announced that it will not
private health insurance.
consider any testing or treatment for COVID-19 as part of
the public charge inadmissibility determination.
Impact
The number of aliens denied visas or adjustment of status
Others are concerned about the impact of the new rules on
due to a determination of inadmissibility on public charge
the public charge determination process; they fear that
grounds is difficult to quantify precisely. DHS does not
individual officers now have a larger degree of discretion,
compile statistics and share publicly the number of
which could lead to inconsistent outcomes. Some also fear
adjustment of status applications denied by particular
it will increase processing times and backlogs.
grounds of inadmissibility. Nevertheless, to understand the
scope of those who could be subject to the new DHS rule,
Supporters of the final rules believe they uphold American
in FY2019 DHS approved 576,872 applications for
values of self-sufficiency, ensure that the availability of
adjustment of status and denied 76,215.
public benefits will not incentivize immigration to the
United States, and save taxpayers money.
In contrast, DOS reports on the total number of immigrant
Proposed Legislation in the 116th
and nonimmigrant visa refusals, and also breaks out the
Congress
refusals by specific grounds of inadmissibility. However,
given that DOS’ interim final rule took effect on February
Legislative proposals aimed to limit the implementation of
24, 2020, data are not yet available to assess its impact.
the public charge rules have been introduced in the 116th
Nevertheless, since the January 2018 FAM changes, which,
Congress. H.R. 3222, the No Federal Funds for Public
like DOS’ new rule, included consideration of prior use of
Charge Act of 2019, would prohibit the use of federal funds
noncash benefits for public charge determinations, there has
(including fees) “to implement, administer, enforce, or
been a marked increase in the refusal of immigrant visa
carry out” these rules. Companion legislation—the Protect
applications on public charge grounds (see Table 1). To put
American Values Act (S. 2482)—has been introduced in
these numbers in context, in FY2019 DOS issued 462,422
the Senate.
immigrant visas and denied 298,017 immigrant visa
applications.
Abigail F. Kolker, Analyst in Immigration Policy
IF11467


https://crsreports.congress.gov

---

Immigration: Public Charge


Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF11467 · VERSION 1 · NEW

---