Immigration: Public Charge

Immigration: Public Charge

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Updated September 15, 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.
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. However, the rule
charge provisions, both agencies’ evolving definitions of
was enjoined on July 29, 2020 (see “COVID-19 Pandemic”
public charge must be considered.
below).
Since 1999, agency guidance (formerly the Department of
Designated Benefit Programs
Justice’s Immigration and Naturalization Service, now
The DHS final rule, and the subsequent DOS interim final
DHS) has defined public charge to mean a person who is or
rule, expanded the list of public benefits considered in
is likely to become primarily dependent on public cash
public charge determinations. The nine programs
assistance or government-funded institutionalization for
designated in the new rules include four that were included
long-term care. From 1999-2018, DOS’s FAM followed
under the 1999 guidelines: Supplemental Security Income
DHS’ guidance.
(SSI), Temporary Assistance for Needy Families (TANF),
state general assistance, and benefits provided for
In January 2018, DOS revised the FAM to instruct consular
institutionalized long-term care; as well as five additional
officers to consider an alien’s “past or current receipt of
programs: the Supplemental Nutrition Assistance Program
public assistance of any type”—including all types of state
(SNAP), Medicaid (with exceptions), Project-Based Rental
and federal noncash benefits—when determining whether
Assistance, the Housing Choice Voucher Program, and
an alien is likely to become a public charge. While this did
Public Housing.
not change the definition of public charge (i.e., it was still
defined as someone dependent on cash assistance for
Benefits received by certain groups, such as members of the
income maintenance or government-funded long-term
U.S. Armed Forces and their spouses and children, do not
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link to page 2 Immigration: Public Charge
count as public benefits under the regulations. Additionally,
Table 1. DOS Refusals of Immigrant Visas (IV) on
DHS will only consider benefits directly received by the
Public Charge (PC) Grounds of Inadmissibility
alien for the alien’s own benefit; it will not consider
IV Refusal on
Percentage of
benefits received by a legal guardian on behalf of another
(e.g., a U.S. citizen child).
Fiscal Year
PC Grounds
All IV Refusals
Factors Considered in Public Charge
2015
897
0.3%
Determinations
2016
1,076
0.3%
The INA requires immigration authorities to consider, at a
2017
3,237
1%
minimum, the following factors when making public charge
determinations: age; health; family status; assets, resources
2018
13,450
3%
and financial status; and education and skills (8 U.S.C.
2019
20,941
5%
§1182(a)(4)(B)). Immigration officers may also consider an
affidavit of support submitted by an alien’s petitioner as
Source: DOS, Report of the Visa Office 2015-2019, Table XX:
well as the alien’s prospective immigration status (e.g.,
Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for
immigrant or nonimmigrant) and expected period of
Refusal Under the Immigration and Nationality Act) Fiscal Years
admissions as factors. Together, these factors make up what
2015, 2016, 2017, 2018, and 2019.
is known as the totality of the circumstances test for public
charge determinations.
Policy Considerations
Many observers are concerned that these new rules could
The new rules explicate how officers should evaluate each
have a chilling effect on the use of public benefits by
of the statutory factors, setting new standards and required
individuals not subject to the rules (e.g., LPRs, U.S. citizen
evidence for each factor. In addition, officers are to
children). They could deter enrollment of eligible people in
consider a set of heavily weighted factors. There are four
benefit programs and negatively affect public health. Others
heavily weighted negative factors: (1) unemployment, (2)
are concerned about the impact of the new rules on the
past receipt of (or approval to receive) public benefits for
public charge determination process; they fear that
more than 12 of the previous 36 months, (3) inability to
individual officers now have a larger degree of discretion,
cover medical costs, and (4) prior public charge
which could lead to inconsistent outcomes. Some also fear
determination. In addition, there are three heavily weighted
the rules will increase processing times and backlogs.
positive factors: (1) household income or assets of at least
250% of federal poverty guidelines (FPG), (2) individual
Supporters of the new rules believe they uphold American
annual income of at least 250% of the FPG, and (3) having
values of self-sufficiency, ensure that the availability of
private health insurance.
public benefits will not incentivize immigration to the
United States, and save taxpayers money.
Impact
The number of aliens denied visas or adjustment of status
COVID-19 Pandemic
due to a determination of inadmissibility on public charge
In light of the pandemic, some observers fear that these
grounds is difficult to quantify precisely. DHS does not
rules will discourage immigrants from utilizing public
compile statistics and share publicly the number of
health care systems, which could increase the spread of
adjustment of status applications denied by particular
COVID-19. USCIS announced that it will not consider any
grounds of inadmissibility. Nevertheless, to understand the
testing or treatment for COVID-19 as part of the public
scope of those who could be subject to the new DHS rule,
charge inadmissibility determination. However, a New
in FY2019 DHS approved 576,872 applications for
York federal judge found this announcement “plainly
adjustment of status and denied 76,215.
insufficient.” On July 29, 2020, the court issued a
nationwide injunction blocking the DOS public charge rule
In contrast, DOS reports on the total number of immigrant
until further court order. With respect to the DHS public
and nonimmigrant visa refusals, and also breaks out the
charge rule, although litigation is ongoing, currently there
refusals by specific grounds of inadmissibility. However,
are no court orders in place that restrict its application
given that DOS’ interim final rule took effect on February
during the pandemic.
24, 2020, data are not yet available to assess its impact.
Nevertheless, since the January 2018 FAM changes, which,
Proposed Legislation in the 116th
like DOS’ new rule, included consideration of prior use of
Congress
noncash benefits for public charge determinations, there has
Legislative proposals aimed at limiting the implementation
been a marked increase in the refusal of immigrant visa
of the public charge rules have been introduced in the 116th
applications on public charge grounds (see Table 1). To put
Congress. The No Federal Funds for Public Charge Act of
these numbers in context, in FY2019 DOS issued 462,422
2019 (H.R. 3222) would prohibit the use of federal funds
immigrant visas and denied 298,017 immigrant visa
(including fees) “to implement, administer, enforce, or
applications.
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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https://crsreports.congress.gov | IF11467 · VERSION 4 · UPDATED