DHS Public Charge Proposal: Green Card Applications Would Turn on Whether the Applicant is Likely to Use “One or More Public Benefit” at Any Time in the Future

DHS Public Charge Proposal: Green Card Applications Would Turn on Whether the Applicant is Likely to Use “One or More Public Benefit” at Any Time in the Future

Legal Sidebar

DHS Public Charge Proposal: Green Card
Applications Would Turn on Whether the
Applicant is Likely to Use “One or More
Public Benefit” at Any Time in the Future
December 12, 2018
The public charge ground of inadmissibility in the Immigration and Nationality Act (INA) requires
immigration officials to make forward-looking assessments about the likelihood that a non-U.S. national
(alien) will become dependent on the government in the future. The statute renders an alien
“inadmissible” if he or she is “likely at any time to become a public charge.” (Refugees, asylees, and
some other groups of aliens are exempt from the public charge ground of inadmissibility.) As explained in
a recent CRS Report, under current executive branch practice, the provision has implications mainly for
aliens who seek lawful permanent resident (LPR) or “green card” status by applying for adjustment of
status, if they are in the United States, or for an immigrant visa at a U.S. consulate abroad. The U.S.
Citizenship and Immigration Services (USCIS) within the Department of Homeland Security (DHS)
adjudicates adjustment of status applications; Department of State (DOS) consular officers adjudicate
immigrant visa applications. Both types of applications can be denied if the applicant is found
inadmissible on public charge grounds.
DHS has proposed new regulations that would define “public charge”—which the INA itself does not
define—in a way that likely would render more adjustment of status applicants inadmissible under the
forward-looking inquiry. Specifically, the proposed regulations would lower the level of public benefits
that, if likely to be received by an applicant at any point in the future, would trigger the inadmissibility.
Under current DHS public charge guidance, applicants typically are determined to be inadmissible only if
they are found likely to become “primarily dependent” on welfare-type benefits in the future.
Inadmissibility findings under this standard appear to be rare. DHS does not publish statistics on the
denial of adjustment of status applications based on public charge grounds, but available DOS statistics
on immigrant visas issued and refused under similar guidance show public charge denials in less than one
percent of cases. Under the proposed regulations, however, applicants would be inadmissible if found
likely to receive comparatively smaller amounts of a wider range of cash and federal non-cash benefits,
including Medicaid and benefits received under the Supplemental Nutrition Assistance Program (SNAP).
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In addition, the proposal would subject applicants for two types of temporary immigration benefits—
extension of nonimmigrant status and change of nonimmigrant status—to public charge-type
determinations. The proposed regulations would not bind DOS consular officers, but DHS has suggested
that DOS would “likely” revise its guidance to consular officers to conform to the new regulations.
(Under a January 2018 revision to the public charge guidance in the Foreign Affairs Manual, consular
officers already consider non-cash benefits. In other respects, the guidance for consular officers still
tracks the USCIS guidance.)
DHS published the proposed regulations in the Federal Register on October 10, 2018. The public
comment period ended on December 10, 2018. DHS must now review comments and may revise the
proposed regulations as a result of its review. Thereafter, DHS may publish a final rule in the Federal
Register that could take effect no earlier than 60 days after publication or 60 days after Congress receives
a report from DHS about the proposal under the Congressional Review Act, whichever is later.
Overview of the DHS Proposal
The proposed regulations would change the DHS definition of “public charge” to mean a person who
“receives one or more public benefit.” By contrast, the current DHS guidance in place since 1999 defines
“public charge” to mean a person who is “primarily dependent” on public cash assistance for income
maintenance (i.e., welfare-type assistance) or government-funded institutionalization for long-term care.
Thus, under the current guidance, the USCIS officer must determine whether an applicant for adjustment
of status is likely to become “primarily dependent” on public cash assistance or government-funded long-
term care in the future. Under the proposed regulations, however, the officer would determine whether the
applicant is likely to receive “one or more public benefit” in the future. Both determinations are
prospective—they concern what benefits the applicant is likely to use in the future—but the proposed
regulations would abrogate the threshold of “primary dependence” upon welfare or institutionalization to
make the receipt of any “public benefit” (as defined in the proposal) the touchstone of the forward-
looking assessment.
The proposed regulations would define “public benefit,” in turn, to mean certain, enumerated types of
benefits—both cash and non-cash—if they are received above a specified dollar value or for more than a
specified period. This complex definition of “public benefit,” summarized in a USCIS FAQ, encompasses
two important groups of benefits: (1) certain cash or “monetizable” non-cash benefits (such as SNAP
benefits or federal housing assistance), if received in an amount exceeding about $1,820 in one year (the
exact amount depends on the applicable Federal Poverty Guidelines); and (2) Medicaid and other “non-
monetizable” benefits if received for more than one year in a three-year period. Thus, the proposed
regulations would change the prospective USCIS determination from one focused on the likelihood of an
alien becoming primarily dependent on welfare-type benefits to one focused on the likelihood of an alien
receiving more than about $1,820 in SNAP benefits in one year (among other cash or monetizable
benefits) or more than one year of Medicaid coverage (among other non-monetizable benefits).
As for its potential impacts, the proposal acknowledges that it would “likely increase... the number of
denials for adjustment of status applicants based on public charge inadmissibility determinations” but
states that DHS cannot estimate the increase “with any degree of certainty.” Statistics about public
benefits use cited in the proposal offer additional perspective. According to those statistics, 3.7% of all
foreign-born persons (including both aliens and naturalized U.S. citizens) and 1.8% of noncitizens in the
United States receive welfare-type assistance, while just over 20% of people in those groups receive the
forms of non-cash benefits that would be subject to consideration under the proposal (for native-born U.S.
citizens, the figures are similar—3.4% receive welfare-type assistance and 20.4% receive non-cash
benefits). Accordingly, the proposed regulations would transform the public charge inadmissibility
assessment from a prediction about whether an applicant for adjustment of status will become primarily
dependent on a relatively rare benefit into a prediction about whether the applicant will receive an
appreciable amount of benefits that are more common.

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Factor-by-Factor Framework for Assessing the Likelihood of Future Benefits Use
Aside from changing what USCIS officers must determine about an alien’s likely future benefits use, the
proposed DHS regulations would also establish a new framework for how USCIS officers should make
the forward-looking determination. The INA lists five factors that officials must “at a minimum” consider
when making public charge inadmissibility determinations: age; health; family status; education and
skills; and assets, resources, and financial status. Together these factors make up what is known as the
“totality of the circumstances” test for public charge determinations. The proposed regulations set out
considerations to frame the officer’s analysis of each of the statutory factors. For example, under “family
status,” the proposed regulations state that “DHS will consider the alien’s household size... and whether
the alien’s household size makes the alien more or less likely to become a public charge.” Under the
“financial status” factor, the officer would be instructed to consider, among other issues, whether the
alien’s household income “is at least 125 percent of the most recent Federal Poverty Guidelines.” The
proposed regulations would also instruct officials to consider one additional factor not specified in the
INA: the alien’s “prospective immigration status and expected period of admission.” Applicants for
adjustment of status would have to fill out a new form called a “Declaration of Self-Sufficiency” to
supply information relevant to each factor so as to “facilitate USCIS’ public charge inadmissibility
determination.” (Aliens applying to extend or change a nonimmigrant status would have to fill out the
form at the discretion of USCIS.)
For most factors, the proposed regulations go on to identify some types of evidence that officers should
consider. Under “financial status,” for example, USCIS’s assessment would include the alien’s “credit
history and credit score.” Under “health,” the assessment would include the report of a medical
examination “by a civil surgeon or panel physician where such examination is required.”
The officer’s assessment of each factor would lead to a determination that the factor is “positive” or
“negative” for the applicant. Some positive or negative determinations, however, would be “heavily
weighted”:
Heavily weighted negative factors
 Unemployment: the applicant neither studies nor works despite authorization to do so,
and lacks a “reasonable prospect of future employment”
 Public Benefits: the applicant currently receives or is approved to receive a “public
benefit,” or has received a “public benefit” within the previous three years
 Inability to cover medical costs: the applicant “is likely to require extensive medical
treatment” that she likely cannot afford and cannot cover with private insurance
Heavily weighted positive factors
 Household assets of “at least 250 percent of the Federal Poverty Guidelines”
 Annual income of “at least 250 percent of the Federal Poverty Guidelines” for the
household
Officers would incorporate their positive and negative determinations into an overall, balancing-style
assessment of the alien’s likelihood to use a public benefit in the future. If the negatives outweigh the
positives, the alien would be deemed inadmissible. Two case studies in the proposal indicate that the
balancing analysis would not be mathematical. USCIS officers would reach determinations for each factor
but proceed to make an overall determination based on the “facts and circumstances in the totality,”
without tallying the positives and negatives into a precise score. Both case studies also suggest an
emphasis upon whether the applicant is likely to require future medical treatment that he or she cannot
cover or afford.
Consideration of the Applicant’s Past or Current Receipt of Some Federal Non-Cash Benefits

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Past or current receipt of the following federal non-cash benefits that are not subject to USCIS
consideration under the current guidance would become subject to consideration under the proposed
regulations if the applicable time or value threshold is surpassed:
 Medicaid (with some exceptions, such as when received for emergency medical
conditions)
 SNAP
 Some federal housing or rental assistance programs
 Medicare Part D prescription drug coverage
An alien’s receipt of any of these benefits, like receipt of cash benefits for income maintenance or
government-funded long term care, over the applicable threshold within the prior three years would
constitute a “heavily weighed negative factor,” as would current receipt of or approval for such benefits.
But the expanded benefit list would only apply prospectively. For benefit types that are not subject to
consideration under the current guidance, receipt of benefits under the programs listed above would only
factor into a public charge determination if the benefits are received or applied for at least 60 days after
the publication of a finalized version of the new regulations.
This aspect of the proposed regulations—the proposal to consider past or current receipt of some federal
non-cash benefits—has drawn significant media attention. However, under the INA, aliens who are
subject to USCIS public charge determinations (essentially, aliens who do not yet have LPR status and
who do not fall into any of the exemptions to the public charge inadmissibility ground) generally do not
qualify for the non-cash benefits that would become subject to consideration under the proposed
regulations. Most overlap between benefits eligibility, on the one hand, and benefit use that would be
considered under the new rules, on the other hand, would fall within three areas: (1) state welfare or
general assistance (which is already subject to consideration under the current guidance); (2) Medicaid for
“lawfully residing” pregnant women and children under 21, under the state option to extend coverage to
such individuals; and (3) cash and non-cash benefits for aliens who are paroled into the United States for
more than one year.
Thus, past or current use of non-cash benefits seems unlikely to alter many USCIS public charge
determinations under the new rules, except in some cases involving women or children covered by the
Medicaid state option, or parolees. Some commentary has warned of a risk of over-deterrence: that is, the
risk that the new regulations, given their complexity, may deter benefit use that would not be relevant to
public charge determinations (such as benefits use by refugees, for example, or use of non-cash benefits
like the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) that would not
become subject to consideration under the proposed regulations). But the major impact of the DHS
proposal on the outcomes of adjustment of status cases would probably result from its transformation of
the prospective inquiry under the public charge ground of inadmissibility—from a determination centered
on an alien’s likelihood of becoming primarily dependent on welfare to a determination of an alien’s
likelihood of receiving “one or more public benefit” in the future, including Medicaid and SNAP—rather
than the changes it would make to consideration of prior or current benefits use.

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Considerations for Congress
Immigration adjudications often turn on broad, forward-looking assessments. Applications for temporary
visitor visas, for example—of which DOS adjudicated about nine million in FY 2017—typically come
down to a judgment about the applicant’s plans. For instance, does the applicant intend to visit the United
States for only a brief period of business or pleasure, in which case he may qualify for a tourist visa? Or
does he intend to abandon his residence in a foreign country to remain in the United States indefinitely?
But in the context of immigrant visa and adjustment of status adjudications, where admission for LPR
status is at stake, such prospective determinations have traditionally played a smaller role. The primary
issues that such adjudications pose are whether the applicant has a legal basis to immigrate (such as a
qualifying family or employment relationship) and whether he is barred by any grounds of inadmissibility
(such as the provisions rendering aliens inadmissible if they have been convicted of certain crimes). And
while some grounds of inadmissibility require forward-looking assessments—such as those barring aliens
who “seek to enter the United States to engage” in activity that violates espionage laws or to engage in
other unlawful activity—their narrow focus constrains the scope of the immigration official’s inquiry. The
DHS public charge proposal, by changing the public charge inadmissibility inquiry to focus upon the
likelihood that an applicant will at any point in the future use a relatively low level of federal benefits
(compared to the level relevant under current guidance), would bring a prospective assessment to bear on
adjustment of status applications that is much broader than exists under current policy.
If Congress disapproves of the DHS proposal, it has several legislative options. It could enact a joint
resolution disapproving of the proposed regulations under the Congressional Review Act, if and when the
rulemaking process reaches the appropriate juncture. Alternatively, Congress could codify the existing
DHS guidance, enact some other definition of “public charge” narrower than the DHS proposal, or
change the statute to require an assessment of an applicant’s current self-sufficiency instead a predictive
inquiry. Congress could also establish in more detail the factors that officials can and cannot consider
when making the prospective assessment (e.g., specify that officials should not consider past or current
use of certain types of benefits, such as Medicaid or other non-cash benefits). Or, as one bill proposes,
Congress could preserve the status quo under the current guidance by prohibiting DHS from using funds
to implement the proposed regulations.
On the other hand, if Congress agrees with the DHS proposal, it could codify it to obviate legal arguments
that the proposal lacks adequate justification or unreasonably interprets the inadmissibility statute. If
Congress finds the DHS proposal too permissive, it could codify a stricter definition of “public charge” or
specify that officials making public charge determinations must consider an even broader list of public
benefits received by aliens, such as non-cash benefits received from state and local governments.

Author Information

Ben Harrington

Legislative Attorney

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Disclaimer
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