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