Will the definition of public charge change under the current administration? What does this mean for green card applicants?

On October 10, 2018 a proposed rule was published by the U.S. Department of Homeland Security (“DHS”), which seeks to change the definition of what immigration officers should consider when determining whether a green card applicant is likely to become a public charge. A finding that someone is likely to become a public charge would make them ineligible for the green card. The public could have commented on this proposed rule until December 10, 2018. Currently, DHS is reviewing public comments and it will thereafter publish a final regulation and specify its effective date. In the immigration context, someone who is likely to become a public charge is someone who is likely to become primarily dependent on the government for subsistence.

Under the current rule, immigration officers are supposed to consider a variety of factors to determine whether someone is likely to become a public charge, including whether the person has ever received cash assistance from the state, local or federal government. Currently, receiving Medicaid and other health services (except long-term institutional care support) is not considered public assistance and would not be considered in determining whether someone is likely to become a public charge. Moreover, receiving housing benefits, Children’s Health Insurance Program (“CHIP”), food stamps, or foster care and adoption assistance cannot be considered as negative factors in the analysis of whether someone will become a public charge. In addition, Obamacare is not considered in the public charge analysis.

Under the proposed rule, immigration officers would be instructed to consider a wider variety of public benefits in the public charge analysis, including benefits received from the Section 8 Housing Voucher Program, Section 8 Rental Assistance, Medicaid, Medicare Part D Low-Income Subsidy Program and Subsidized Public Housing. Receiving one or more of these benefits above certain thresholds would weigh negatively in the officer’s assessment of whether the green card applicant is likely to become a public charge.

One area of great concern has been whether CHIP (Children’s Health Insurance Program) will be included as a public benefit that would weigh negatively in the public charge analysis. CHIP provides health coverage to children in families who earn too much money to qualify for Medicaid, but not enough money to pay for private coverage. Children who are U.S. citizens or “qualified non-citizens” (such as green card holders, asylees, or refugees) are eligible for CHIP. However, children who are green card holders have a 5-year waiting period — they have to wait 5 years after receiving green card to apply for CHIP. States can waive this condition, and you should check your state’s requirements to see if your child is eligible for CHIP. The Department of Homeland Security has specifically requested public comments on whether or not to include CHIP as a public benefit that could be considered for a public charge purposes. Despite some previous discussions, buying health insurance through the state and federal healthcare exchanges (Obamacare) is not listed in the proposed rule as a public benefit that could be considered in the public charge analysis.

Expanding the definition of what benefits can count towards determining whether someone is likely to become a public charge will have a big impact on green card applicants, as any alien who is likely to become a public charge at any time in the future is inadmissible and would not be able to obtain a green card. The expanded definition could also have negative impacts on the health of communities, and particularly U.S. citizen children of green card applicants, as green card applicants may be more reluctant to take advantage of public benefits available to their U.S. citizen children for fear of making themselves ineligible for a green card.

At this point the public comments are being reviewed by the DHS and the rule may undergo changes before it is implemented.  Foreign nationals can continue to use benefits (such as CHIP) that are not currently included in the public charge analysis. When determining whether someone is likely to become a public charge, the immigration officer should consider factors such as age, health, family, and financial status, and education and skills. Officers must always consider the totality of circumstances when deciding whether someone is likely to become a public charge and this aspect of the public charge analysis will remain the same under the new rule. Under the proposed rule, DHS listed certain heavily weighed negatives (e.g. lack of employability) and heavily weighed positives (e.g. significant assets) as factors the officer should consider when determining whether someone is likely to become a public charge.

If you are receiving any type of public benefit and you are concerned about whether this could impact your eligibility for a green card you should consult with an immigration attorney to determine how to proceed.

Please see other grounds that could make you ineligible for a green card when you click here. Please also see more information about how to maintain your green card when you click here.