DHS Final Rule on Public Charge: Overview and Considerations for Congress
Legal Sidebar
DHS Final Rule on Public Charge: Overview
and Considerations for Congress
Updated February 3, 2020
On August 14, 2019, the Department of Homeland Security (DHS) published a final rule that contains
new regulations interpreting the public charge ground of inadmissibility in the Immigration and
Nationality Act (INA). The regulations make it more likely that non-U.S. nationals (aliens) will not
qualify to become lawful permanent residents (LPRs) due to their potential future use of public benefits.
Specifically, the regulations render aliens inadmissible to the United States (and thus ineligible to obtain
LPR status) if they are “more likely than not at any time in the future to receive one or more public
benefits . . . for more than 12 months within any 36-month period.” Some non-cash federal benefits—
including most forms of Medicaid, federal housing assistance, and benefits received under the
Supplemental Nutrition Assistance Program (SNAP)—count as “public benefits” under the regulations. In
contrast, under the prior executive branch interpretation of the public charge ground of inadmissibility,
which had been in place since 1999, use of such non-cash benefits did not impact public charge
determinations.
DHS has announced that it will begin enforcing the new regulations on February 24, 2020, except in
Illinois. The announcement follows a January 27, 2020 Supreme Court order granting DHS a stay of two
nationwide preliminary injunctions that had blocked implementation of the regulations on the ground that
they likely violated the INA and the Administrative Procedure Act. Earlier, DHS had obtained stays of
other nationwide preliminary injunctions against the regulations from two federal appellate courts. As of
this writing, one preliminary injunction against the regulations remains in place, and it blocks their
implementation in Illinois. As such, under the court orders currently in effect, DHS may enforce the new
regulations for the time being, except in Illinois, while litigation over their legality moves forward.
This Legal Sidebar addresses legal aspects of the new public charge rule—specifically, how it changes the
criteria for public charge determinations and, to a lesser extent, the ongoing litigation concerning the
rule’s legality. The Sidebar does not focus on the policy arguments for and against the rule.
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Background on Public Charge and Pre-Existing DHS
Guidance
The public charge ground of inadmissibility requires immigration officials to make forward-looking
assessments about the likelihood that an alien, if admitted into the United States, will become dependent
on public assistance in the future. The INA 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 a CRS Report explains, under longstanding executive branch
practice, the provision has implications mainly for aliens who seek LPR status either by applying for
adjustment of status, if they are already in the United States, or by applying for an immigrant visa at a
U.S. consulate, if they are abroad. The U.S. Citizenship and Immigration Services (USCIS) within 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.
The INA does not define what it means to be a “public charge.” Under the prior DHS guidance that the
new regulations supersede, applicants were inadmissible on public charge grounds only if they were
likely to become “primarily dependent” on one of two types of public benefits: (1) public cash assistance
for income maintenance (i.e., cash benefits received through state general assistance programs or federal
programs such as the Supplemental Security Income (SSI) program), or (2) government-funded
institutionalization for long-term care. DHS officials did not consider past, current, or likely future receipt
of any other benefits, such as Medicaid or SNAP, when making this determination. Inadmissibility
findings under this guidance appear to have been 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 in fiscal year 2017, during a period when DOS closely followed the
DHS guidance, show public charge denials occurred in less than one percent of cases.
DOS, for its part, has promulgated regulations that mirror the new DHS regulations so as to harmonize
the two agencies’ application of the public charge ground of inadmissibility. The DOS regulations
technically became effective on October 15, 2019, but DOS has yet to implement them because it is still
finalizing a new form that it intends to use in conjunction with the regulations (the public comment period
for the form closed on December 23, 2019). Nonetheless, even without new regulations in place, DOS
consular officers have been considering the use of non-cash benefits when making public charge
determinations since January 2018. Before that date, DOS’s Foreign Affairs Manual (FAM), which
provides guidance to consular officers abroad, had followed the longstanding DHS guidance in
establishing that aliens were inadmissible on public charge grounds only if they were likely to become
primarily dependent on public cash assistance or government-funded institutionalization for long-term
care. In January 2018, however, DOS revised the FAM to instruct consular officers to consider an alien’s
“[p]ast or current receipt of public assistance of any type”—including all types of state and federal non-
cash benefits—when determining whether an alien is likely to become dependent in the future on cash
assistance for income maintenance or government-funded long-term care. In other words, consular
officers (unlike DHS officers) already have a two-year history of taking into account an alien’s past use of
non-cash benefits when forecasting the likelihood that the alien will, at some point in the future, come to
depend on public cash assistance or government-funded long-term care. Some reporting indicates that this
consideration of prior use of non-cash benefits, along with other aspects of the January 2018 FAM
changes, has led to a marked increase in the refusal of immigrant visa applications on public charge
grounds.
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Overview of New Regulations
The new regulations change DHS’s definition of “public charge” to render aliens inadmissible if they are
“more likely than not at any time in the future to receive one or more public benefits . . . for more than 12
months within any 36-month period.” Public benefits, as defined in the regulations, include not only
public cash assistance and government-funded institutionalization for long-term care, but also the
following federal non-cash benefits:
Medicaid (with some exceptions, such as when received for emergency medical
conditions or when received by pregnant women or people under age 21)
SNAP
Some federal housing or rental assistance programs
No benefits received by certain groups, such as members of the U.S. Armed Forces and their spouses and
children, count as “public benefits” under the regulations.
Thus, under the new regulations, instead of determining whether an alien is likely to become “primarily
dependent” on public cash assistance or government-funded institutionalization for long-term care,
USCIS officers must determine the likelihood of an alien receiving a benefit from this expanded list for
more than a year in the aggregate during any future three-year period.
In addition, the new regulations subject applicants for two types of temporary immigration benefits—
extension of nonimmigrant status and change of nonimmigrant status—to public charge-type
determinations. For these nonimmigrants, however, the inquiry under the new regulations is purely
retrospective: instead of assessing likely future benefits use, USCIS officers assess only whether the
applicants used public benefits while in nonimmigrant status.
Factor-by-Factor Framework for Assessing the Likelihood of Future
Benefits Use
Aside from changing what immigration officers must determine about an alien’s likely future benefits
use, the new regulations also establish a new framework for how 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. The statute also allows officials to consider an affidavit of support
submitted on behalf of the alien, which may indicate that the alien can count on financial support from a
relative. Together these factors make up what is known as the “totality of the circumstances” test for
public charge determinations.
The new DHS regulations set out considerations to frame the officer’s analysis of each of the statutory
factors. For example, under “family status,” the regulations state that “DHS will consider the alien’s
household size... and whether the alien’s household size makes the alien more likely than not to become a
public charge.” Under the “financial status” factor, the officer must consider, among other issues, whether
the alien’s household income “is at least 125 percent of the most recent Federal Poverty Guideline.” The
new regulations 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 must fill out a new form called a “Declaration of Self-Sufficiency” to supply information relevant
to each factor. (Aliens applying to extend or change a nonimmigrant status must answer new questions
about public benefits use on their application forms but need not submit the Declaration of Self-
Sufficiency.)
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For most factors, the new regulations go on to identify some types of evidence that officers consider.
Under “financial status,” for example, USCIS considers the alien’s “credit history and credit score.”
Under “health,” the USCIS assessment takes into account 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 leads to a determination that the factor is “positive” or “negative”
for the applicant. Some positive or negative determinations, however, are “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 has received or has been approved to receive a “public
benefit” for more than 12 of the previous 36 months
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
A prior immigration court determination that the alien is a public charge
Heavily weighted positive factors
Household income or assets of “at least 250 percent of the Federal Poverty Guidelines”
Individual annual income of “at least 250 percent of the Federal Poverty Guidelines” for
the alien’s household size
Private health insurance (not including subsidized insurance under the Patient Protection
and Affordable Care Act)
Officers 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 is deemed inadmissible.
Consideration of the Applicant’s Past Receipt of Some Federal Non-Cash
Benefits
The aspect of the new regulations that subject some non-cash benefits to public charge consideration only
apply prospectively. Thus, an alien’s receipt of relevant non-cash benefits (SNAP, federal housing
assistance, and Medicaid, with exceptions) before the regulations became effective does not factor into a
public charge determination under them. Going forward, however, receipt of or approval for any relevant
non-cash benefit for more than 12 of the prior 36 months constitutes a “heavily weighed negative factor.”
USCIS is to count months separately for each benefit received, “such that, for instance, receipt of two
benefits in one month counts as two months.” If the alien has received the non-cash benefits for a period
under the 12-month threshold, USCIS still considers the benefits use but does not count it as a “heavily
weighted negative factor.” (The same rules apply to the types of benefits subject to consideration under
the pre-existing guidance—public cash assistance and government-funded institutionalization for long-
term care—except that receipt of or approval for these types of benefits before the effective date of the
regulations counts as a negative but not heavily-weighted factor.)
Eligibility rules for the relevant non-cash federal benefits also suggest that an alien’s past use of these
benefits may be less likely to impact public charge determinations under the new regulations than
immigration officers’ projections of the likelihood that the alien will use the benefits in the future. Under
the INA, aliens who are subject to 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,
such as the exemptions for asylees and refugees) generally do not qualify for the relevant non-cash federal
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benefits. Yet, even when an alien applying for adjustment of status has not received Medicaid, SNAP, or
federal housing assistance in the past, the USCIS officer must still determine, under the new regulations,
whether it is more likely than not that the alien will receive these benefits for more than one year in any
future three-year period. It is this projection of aliens’ future use of these non-cash benefits—not past
use—that is likely to impact public charge determinations under the new regulations.
The scope of this prospective determination could result in more inadmissibility findings than under the
pre-existing guidance. As DHS asserted when it initially proposed the new regulations in October 2018,
aliens and citizens alike are far more likely to use the relevant non-cash benefits than the public cash
assistance that is the focus of public charge determinations under the pre-existing guidance. According to
statistics cited in the proposal, 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 public cash assistance. In contrast, just
over 20% of people in those groups receive the forms of non-cash benefits that the new regulations
subject to consideration (for native-born U.S. citizens, the figures are similar—3.4% receive public cash
assistance and 20.4% receive non-cash benefits). Accordingly, the new regulations 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 much more common.
In a different vein, some commentary has suggested that the new regulations may deter use of benefits for
which certain groups of non-LPR aliens do qualify and which 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 is not subject to
consideration under the new regulations).
Litigation
After an initial stage of litigation over the legality of the DHS regulations, DHS currently may enforce the
new public charge regulations throughout the United States, except in Illinois. DHS has announced that it
will begin doing so on February 24, 2020. A complicated web of court orders has produced this status
quo.
Before the DHS regulations could go into effect as scheduled on October 15, 2019, a number of federal
district courts held that the regulations likely violated the INA and the Administrative Procedure Act.
District courts in three federal judicial circuits—the Second, Fourth, and Ninth Circuits—issued
nationwide preliminary injunctions barring DHS from implementing the regulations anywhere in the
United States during further proceedings. An injunction issued by a district court in another federal
circuit—the Seventh Circuit—barred implementation in the state of Illinois. DHS obtained stays of the
district court injunctions in the Ninth and Fourth Circuits from the Courts of Appeals for those circuits.
DHS obtained stays of the remaining nationwide injunctions—those issued by a district court in the
Second Circuit—from the Supreme Court, after the Court of Appeals for the Second Circuit declined to
grant the stays. Thus, none of the nationwide preliminary injunctions remain in effect. However, the
injunction that applies in Illinois remains in place; the Court of Appeals for the Seventh Circuit declined
to stay that injunction (without a published opinion).
The upshot of this series of orders is that DHS may enforce the new regulations outside of Illinois at least
until the litigation returns to the Supreme Court, which probably would not hear an appeal until its next
term given the status of proceedings in the various cases. Even then, only a Supreme Court outcome
adverse to DHS could result in another nationwide block of the regulations. As for Illinois, the Trump
Administration has indicated that it will ask the Seventh Circuit to revisit its stay application in light of
the Supreme Court order. In any event, the Seventh Circuit is to hear oral arguments in the next phase of
the case—the government’s appeal of the state-wide preliminary injunction—on February 26, 2020,
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according to the case docket. Thus, DHS potentially could obtain permission to implement the regulations
in Illinois in the coming months.
Considerations for Congress
Immigration adjudications often turn on broad, forward-looking assessments. Applications for temporary
visitor visas, for example—of which DOS adjudicated about ten million in FY2018—typically come
down to a judgment about the applicant’s plans. If the applicant intends to visit the United States for a
brief period of business or pleasure, he may qualify for a tourist visa. If he intends to abandon his
residence in a foreign country to remain in the United States indefinitely, then he does not qualify.
But in the context of immigrant visa and adjustment of status adjudications, where 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 falls within 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 new
DHS regulations alter this general framework. They bring a prospective assessment to bear on adjustment
of status applications that is much broader than exists under current policy, because the regulations
change the public charge inquiry to focus upon a lower threshold of likely future benefits use.
If Congress disapproves of the new regulations, it has several legislative options. Congress could codify
the pre-existing DHS guidance, enact some other definition of “public charge” narrower than that
contained in the regulations, 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 use of certain types of benefits, such as Medicaid or other non-cash benefits). Or, as
bills introduced in the House and Senate have proposed, Congress could preserve the status quo under the
current guidance by prohibiting DHS from using funds to implement the new regulations.
On the other hand, if Congress agrees with the new regulations, it could codify them to obviate legal
arguments that the regulations lack adequate justification or unreasonably interpret the inadmissibility
statute. If Congress finds the DHS regulations 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.
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Author Information
Ben Harrington
Legislative Attorney
Disclaimer
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