Immigration: Public Charge 2022 Final Rule

Immigration: Public Charge 2022 Final Rule

INSIGHTi

Immigration: Public Charge 2022 Final Rule
Updated October 18, 2022
Under federal immigration law, a noncitizen (alien) who is likely to become a public charge is deemed
inadmissible, or ineligible to be admitted to the United States as a lawful permanent resident (LPR or
green card holder). Public charge determinations are made based on the totality of the circumstances for
each case. In recent years, the criteria considered in public charge determinations have shifted.
Beginning in 1999, public charge guidance directed immigration officials to consider whether a
noncitizen has become or is likely to become dependent on cash benefits for income maintenance or long-
term institutionalization at government expense, among other factors. In 2019, during the Trump
Administration, the Department of Homeland Security (DHS) issued a new federal regulation that
expanded the definition of public charge to consider whether a noncitizen was “more likely than not at
any time in the future” to use certain public benefits; the guidance also added consideration of certain
noncash benefits. The regulation was subsequently challenged in court. The Biden Administration chose
not to defend the regulation and, in March 2021, reverted to previous guidance. In September 2022, DHS
published a final rule codifying a conceptualization of public charge that is similar to the 1999 guidance.
Background
U.S. immigration law has long contained exclusion and removal provisions designed to limit government
spending on indigent noncitizens. Under Section 212(a)(4) of the Immigration and Nationality Act (INA),
an alien may be denied admission into the United States or adjustment to LPR status if they are “likely at
any time to become a public charge.” An admitted alien may be subject to removal from the United States
based on a separate public charge ground of deportability, but this is rarely employed. Certain categories
of aliens, such as refugees and asylees, are exempted from the public charge grounds of inadmissibility.
There is no public charge determination for noncitizens applying to naturalize (become U.S. citizens).
Immigration authorities are required by statute to, at a minimum, consider the following factors when
making public charge determinations: age; health; family status; assets, resources, and financial status;
and education and skills. Immigration officers may also consider an affidavit of support submitted by an
alien’s petitioner (if applicable) as well as the alien’s prospective immigration status and expected period
of admission. Together, these factors comprise a totality of the circumstances test for public charge
determinations.
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1999 Field Guidance
Although the INA does not explicitly define the term public charge, beginning in 1999, agency guidance
defined it to mean a person who is or is likely to become “primarily dependent on ... public cash
assistance for income maintenance or ... institutionaliz[ed] for long-term care at government expense.”
The 1999 guidance identified four types of public benefits for which past, current, or future receipt may
be considered as part of the totality of the circumstances test:
 Supplemental Security Income (SSI);
 Temporary Assistance for Needy Families (TANF),
 state and local cash assistance (general assistance); and
 benefits provided for institutionalized long-term care.
2019 Rule
During the Trump Administration, public charge criteria were revised in a DHS final rule published
August 14, 2019. The rule added consideration of the receipt of certain noncash benefits in a public
charge determination. These included the Supplemental Nutrition Assistance Program (SNAP), Medicaid
(with exceptions), and certain public housing benefits.
The 2019 rule explicated how DHS’s U.S. Citizenship and Immigration Services (USCIS) officers should
evaluate each of the statutory factors, setting new standards and evidence for each factor. There were four
“heavily weighted” negative factors: unemployment, past receipt of (or approval to receive) public
benefits for more than 12 of the previous 36 months, inability to cover medical costs, and prior public
charge determination; and three heavily weighted positive factors: household income or assets of at least
250% of federal poverty guidelines (FPG), individual annual income of at least 250% of the FPG, and
having private health insurance.
Supporters of the 2019 rule contended that it reflected a more contemporary consideration of government
benefits and would save taxpayers money. Others opposed the rule, and analysts found decreased
participation in and avoidance of public benefits programs among eligible noncitizens and immigrant
families, including those with U.S. citizen children. Such avoidance was associated with concerns about
future green card applications and perceived risks of immigration enforcement.
The regulation, which took effect on October 15, 2019, faced several legal challenges. After the Biden
Administration took office, DHS chose not to defend the rule in court, and Executive Order 14012
ordered review of agency actions on public charge inadmissibility. USCIS stopped applying the 2019 rule
in March 2021 and reverted to the 1999 field guidance.
2022 Final Rule
On September 9, 2022, DHS published a new final rule in the Code of Federal Regulations to codify a
definition of the phrase likely at any time to become a public charge based on a standard similar to the
1999 guidance. Together with the statutory factors in the INA, DHS considers past or current receipt of
the following public benefits in a public charge determination:
 SSI;
 TANF cash assistance;
 state, tribal, territorial, and local cash assistance for income maintenance; and
 long-term institutionalization at government expense.

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The 2022 rule specifies that USCIS will not consider noncash benefits. It also states that participation in
certain cash assistance programs (e.g., childcare assistance or the Low Income Home Energy Assistance
Program) would not be considered in public charge determinations because it would not connote primary
dependence on the government for subsistence. The determination is still based on the totality of
circumstances, but, under this new rule, DHS is to no longer designate certain factors as “heavily
weighted.” Policymakers may conduct oversight over the implementation of the new final rule and
evaluate whether it is accomplishing its intended purpose.

Author Information

Abigail F. Kolker

Analyst in Immigration Policy

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IN11217 · VERSION 8 · UPDATED