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Updated August 13, 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 in certain states
the Foreign Affairs Manual (FAM). While this applies to
on August 12, 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. Moreover, it is not applicable to aliens who
on October 15, 2019, but was delayed until the Office of
are 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
2017
3,237
1%
Determinations
2018
13,450
3%
The INA requires immigration authorities to consider, at a
minimum, the following factors when making public charge
2019
20,941
5%
determinations: age; health; family status; assets, resources
Source: DOS, Report of the Visa Office 2015-2019, Table XX:
and financial status; and education and skills (8 U.S.C.
Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for
§1182(a)(4)(B)). Immigration officers may also consider an
Refusal Under the Immigration and Nationality Act) Fiscal Years
affidavit of support submitted by an alien’s petitioner as
2015, 2016, 2017, 2018, and 2019.
well as the alien’s prospective immigration status (e.g.,
immigrant or nonimmigrant) and expected period of
Policy Considerations
admissions as factors. Together, these factors make up what
Many observers are concerned that these new rules could
is known as the totality of the circumstances test for public
have a chilling effect on the use of public benefits by
charge determinations.
individuals not subject to the rules (e.g., LPRs, U.S. citizen
children). They could deter enrollment in benefit programs
The new rules explicate how officers should evaluate each
by eligible people and negatively affect public health.
of the statutory factors, setting new standards and required
Others are concerned about the impact of the new rules on
evidence for each factor. In addition, officers are to
the public charge determination process; they fear that
consider a set of heavily weighted factors. There are four
individual officers now have a larger degree of discretion,
heavily weighted negative factors: (1) unemployment, (2)
which could lead to inconsistent outcomes. Some also fear
past receipt of (or approval to receive) public benefits for
they will increase processing times and backlogs.
more than 12 of the previous 36 months, (3) inability to
cover medical costs, and (4) prior public charge
Supporters of the new rules believe they uphold American
determination. In addition, there are three heavily weighted
values of self-sufficiency, ensure that the availability of
positive factors: (1) household income or assets of at least
public benefits will not incentivize immigration to the
250% of federal poverty guidelines (FPG), (2) individual
United States, and save taxpayers money.
annual income of at least 250% of the FPG, and (3) having
COVID-19 Pandemic
private health insurance.
In light of the pandemic, some observers fear that these
Impact
rules will discourage immigrants from utilizing public
The number of aliens denied visas or adjustment of status
health care systems, which could increase the spread of
due to a determination of inadmissibility on public charge
COVID-19. USCIS announced that it will not consider any
grounds is difficult to quantify precisely. DHS does not
testing or treatment for COVID-19 as part of the public
compile statistics and share publicly the number of
charge inadmissibility determination. However, a New
adjustment of status applications denied by particular
York federal judge found this announcement “plainly
grounds of inadmissibility. Nevertheless, to understand the
insufficient.” On July 29, 2020, the court issued nationwide
scope of those who could be subject to the new DHS rule,
injunctions blocking the DHS public charge rule “for any
in FY2019 DHS approved 576,872 applications for
period during which there is a declared national health
adjustment of status and denied 76,215.
emergency in response to the COVID-19 outbreak” and the
DOS public charge rule until further court order. On August
In contrast, DOS reports on the total number of immigrant
12, 2020, the Second Circuit limited the injunction blocking
and nonimmigrant visa refusals, and also breaks out the
the DHS rule to Connecticut, New York, and Vermont.
refusals by specific grounds of inadmissibility. However,
Proposed Legislation in the
given that DOS’ interim final rule took effect on February
116th Congress
24, 2020, data are not yet available to assess its impact.
Nevertheless, since the January 2018 FAM changes, which,
Legislative proposals aimed at limiting the implementation
like DOS’ new rule, included consideration of prior use of
of the public charge rules have been introduced in the 116th
noncash benefits for public charge determinations, there has
Congress. The No Federal Funds for Public Charge Act of
been a marked increase in the refusal of immigrant visa
2019 (H.R. 3222) would prohibit the use of federal funds
applications on public charge grounds (see Table 1). To put
(including fees) “to implement, administer, enforce, or
these numbers in context, in FY2019 DOS issued 462,422
carry out” these rules. Companion legislation—the Protect
immigrant visas and denied 298,017 immigrant visa
American Values Act (S. 2482)—has been introduced in
applications.
the Senate.
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 3 · UPDATED