The Supreme Court approved a Trump administration’s controversial “public charge” rule which makes it more difficult for foreigners to become U.S. permanent residents, particularly when the foreigner received welfare benefits in the past. These regulatory changes applicable to the Department of Homeland Security and Department of State redefined how an immigration agency determines whether a foreigner is at risk for becoming a U.S. “public charge.”  The USCIS (under DHS) has jurisdiction over foreigners who are in the U.S. applying for an immigration benefit.  U.S. consulates abroad (under DOS) have jurisdiction over intending immigrants outside the U.S. who are applying for admission to the U.S.

Essentially, the Trump administration deemed a public charge to be a foreigner who reasonably may obtain government welfare benefits. The Biden administration reverted to the old rule to primarily examine whether such benefits were obtained in the past. If you are seeking US immigration benefits such as a Green Card based on marriage, a fiance relationship, or business, you are potentially affected by regulatory shifts.

Public Charge:  A foreigner who is at risk of becoming a public charge is barred from obtaining an immigration benefit.  In general, a public charge is someone who receives public benefits and can include a wide variety of benefits noted in the table below. The regulations for determining whether someone might become a public charge is nuanced and confusing.

The question is whether a foreigner has received, or is likely to receive in the future certain types of U.S. public charge benefits.

Current Public Charge Rule:  Only immigrants who might receive aid in the future face difficulties when obtaining an immigration benefit. Those benefits include cash income-maintenance benefits and government-funded institutionalization for long-term care, as well as certain food and housing assistance. Cash assistance for income maintenance, according to USCIS guidance, “includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called ‘general assistance’ programs.” Notice in the table below that not all types of government benefits caused an immigration problem.  There are many types of public charge benefits that are unrelated to whether a foreigner might obtain cash assistance or institutional long-term care.

Public Charge Rule Under Trump that was validated by the US Supreme Court:  Receipt of public benefits listed below in the past can cause an immigration officer to question whether the foreigner may become a public charge in the future. The scope of inquiry was broadened under the Trump Administration. Previously, under Trump, receiving benefits such as Medicaid or SNAP would pose a threat to an immigrant’s ineligibility to obtain an immigration benefit such as a Green Card. However, the current, more traditional rule is that certain Medicaid and SNAP recipients are not public charges and are eligible for adjustment. Qualifications are described further below. The point is that receipt of any such benefits can be worrisome due to the Supreme Court decision. It’s best to avoid receipt of many governmental benefits when thinking considering US immigration.

How to determine whether someone might become a Public Charge

USCIS (DHS):  Currently, an alien’s past or current receipt of cash income maintenance, non-cash, or government-funded long-term care can lead to a determination of inadmissibility because they factors into a totality of the circumstances test. Essentially, there is less of a policy to deny immigration visas due to public charge concerns under Biden than under Trump. But, concerns may still exist for those who have received welfare benefits in the past.

Benefits are not restricted to Federal programs. Receipt of benefits from state or local governments are treated as public benefits too. Those state and local programs that are not cash income maintenance or government funded long-term care can be considered for public charge purposes, the same as applies to the Federal aid programs.

Consulates (DOS):  DOS maintains the same inquiry–whether a foreign applicant might receive cash income maintenance or government funded long-term care–but it’s review of the history of the foreign applicant is much broader. Consular officers consider current and might consider past receipt of public benefits of any type by the foreigner or the foreigner’s family. Past receipt of any such benefits affects the totality of the circumstances test.

Table 1. Public Benefits Considered in DHS and DOS Public Charge Determinations

	DHS	DOS
Public Cash Benefits
Supplemental Security Income (SSI)	Yes	Yes
Temporary Assistance to Needy Families (TANF)	Yes	Yes
State or local cash benefit programs for income maintenance	Yes	Yes
Public Non-cash Benefits
Programs (including Medicaid) supporting institutionalization for long-term at the government’s expense (e.g., a nursing home or mental health institution)	Yes	Yes
Medicaid (other than long-term institutional care)	Yes*	Yes
Children’s Health Insurance Program (CHIP)	No	Yes
Supplemental Nutrition Assistance Program (SNAP)	Yes	Yes
Special Supplemental Nutrition Assistance Program for Women, Infants, and Children (WIC)	No	Yes
Supplementary and emergency food assistance programs	No	Yes
National School Lunch and School Breakfast Program	No	Yes
Housing benefits	Yes	Yes
Child care services	No	Yes
Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)	No	Yes
Emergency disaster relief	No	Yes
Foster care and adoption assistance	No	Yes
Education assistance, Head Start Act, or aid for elementary, secondary, or higher education	No	Yes
Job training and job-training programs	No	Yes
In-kind emergency community services, such as soup kitchens and crisis counseling	No	Yes

*NOTE: Exception for benefits received as part of emergency medical services, those under the age of 21, or pregnant women, and certain other exceptions.

In effect, foreigners outside the U.S. have more restrictions than those foreigners inside the U.S. who are seeking a green card.

Additional Exemptions:  In addition to the DHS Medicaid exemption above, there appears to be exemptions for educational services to children with disabilities, active duty veterans and their families, people who have worked for 40 qualifying quarters, refugees, asylees, grants of withholding, and others.  Also, there is an analysis of the level of benefits received, differentiating between monetized and non-monetized benefits.

Monetized vs. Non-Monetized:  Under Trump, monetizable benefits had a threshold of 15% of the federal poverty guidelines in 12 month period.  The non-monetizable is 12 months use in a 36 month period. The non-monetizable period under Trump was 9 months if the foreigner received both monetizable and non-monetizable.  Any particular month was counted as 2 months if the foreigner received 2 types of non-monetizable in the same month.  For example, a foreigner who received Medicaid and subsidized public housing in the same month was regarded as having received benefits for two months. Again, Biden has reverted to the totality of circumstances test. Even so, Trump factors might be reflected upon when examining a visa request.

Monetizable benefits are:  

• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF)
• General Assistance Cash Benefits
• Supplemental Nutrition Assistance Program (SNAP)
• Housing Programs:

• Section 8 Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance

Non-monetizable benefits are:

• Medicaid

• Description of Program
• Exceptions for Certain Medicaid Services
• Exception for Receipt of Medicaid by Foreign-Born Children of U.S. Citizens

• Institutionalization for Long-Term Care
• Premium and Cost Sharing Subsidies under Medicare Part D
• Subsidized Public Housing

Household redefined under the Trump Rule:

Foreigner’s household. For purposes of public charge inadmissibility determinations under section 212(a)(4) of the Act:

(i) If the foreigner is 21 years of age or older, or under the age of 21 and married, the foreigner’s household includes:

(A) The foreigner;

(B) The foreigner’s spouse, if physically residing with the foreigner;

(C) The foreigner’s children, as defined in INA 101(b)(1), physically residing with the foreigner;

(D) The foreigner’s other children, as defined in section 101(b)(1) of the Act, not physically residing with the foreigner for whom the foreigner provides or is required to provide at least 50 percent of the children’s financial support, as evidenced by a child support order or agreement a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the foreigner;

(E) Any other individuals (including a spouse not physically residing with the foreigner) to whom the foreigner provides, or is required to provide, at least 50 percent of the individual’s financial support or who are listed as dependents on the foreigner’s federal income tax return; and

(F) Any individual who provides to the foreigner at least 50 percent of the foreigner’s financial support, or who lists the foreigner as a dependent on his or her federal income tax return.

(ii) If the foreigner is a child as defined in section 101(b)(1) of the Act, the foreigner’s household includes the following individuals:

(A) The foreigner;

(B) The foreigner’s children as defined in section 101(b)(1) of the INA physically residing with the foreigner;

(C) The foreigner’s other children as defined in section 101(b)(1) of the INA not physically residing with the foreigner for whom the foreigner provides or is required to provide at least 50 percent of the children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the foreigner;

(D) The foreigner’s parents, legal guardians, or any other individual providing or required to provide at least 50 percent of the foreigner’s financial support to the foreigner as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided to the foreigner;

(E) The parents’ or legal guardians’ other children as defined in section 101(b)(1) of the INA physically residing with the foreigner;

(F) The foreigner’s parents’ or legal guardians’ other children as defined in section 101(b)(1) of the INA, not physically residing with the foreigner for whom the parent or legal guardian provides or is required to provide at least 50 percent of the other children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or  agreement specifying the amount of financial support to be provided by the parents or legal guardians; and

(G) Any other individuals to whom the foreigner’s parents or legal guardians provide, or are required to provide at least 50 percent of the individuals’ financial support or who are listed as a dependent on the parent’s or legal guardian’s federal income tax return.

In essence, regulatory changes affected those who received benefits in the past when applying for an immigration benefit. However, there are limits and exceptions that may work on that individual’s favor, such as active military status, or having received Medicare benefits for life saving medical services. Overall, those seeking an immigration benefit who have received public benefits in the past might not be considered a public charge, and may not necessarily be inadmissible at present.

If you have low income or received any type of public benefit and are unsure how that might affect your eligibility for benefits such as a green card, please contact us to determine the appropriate course of action in your case. Once you submit your case to an immigration agency, you cannot easily later fix things or have an attorney fix things for you.  You must file correctly from the outset.  Once a problem is identified by an immigration agency, the record is set and the agency will not normally want to reverse a negative determination.