Public Charge Rule In Effect As of December 23, 2022

U.S. Citizenship and Immigration Services (USCIS) has announced that any applications filed on or after December 23, 2022 will be subject to the specifications of a final rule regarding how it will apply the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act.

In September of 2022, we wrote a blog post about how the Department of Homeland Security published a final rule that further clarified what ‘likely to become a public charge’ meant as “likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.”

Public Charge Rule Explained

As previously mentioned, the purpose of the public charge rule is to grant the consular officer, immigration officer or judge the ability to deem inadmissible a visa applicant, admission or adjustment of status applicant who is considered likely to become primarily dependent on the government for support in the form of public benefits like cash assistance or long-term institutionalization at the government’s expense.

What is considered public cash assistance? 

As defined by the rule, public cash assistance could include:

• Supplemental Security Income (SSI)
• Cash assistance under the Temporary Assistance for Needy Families (TANF) program
• State, tribal, territorial, or local cash benefit programs for income maintenance, commonly called “General Assistance”

There are other types of assistance that are in cash that are not necessarily factors for being deemed a public charge.

Public Benefits Not Considered

In making a public charge inadmissibility determination, USCIS will not consider receipt of, or certification or approval for future receipt of, public benefits such as:

• Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs;
• Children’s Health Insurance Program (CHIP);
• Medicaid (other than for long-term use of institutional services under section 1905(a) of the Social Security Act);
• Housing benefits
• Any benefits related to immunizations or testing for communicable diseases
• Other supplemental or special-purpose benefit

Moreover, the following public assistance programs are not deemed to be public charge:

• Treatments or preventative services related to COVID-19, including vaccinations;
• The use of home and community-based services (HCBS);
• Any services provided under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)268 or comparable disaster assistance provided by state, tribal, territorial, or local governments;
• Benefits under the Emergency Food Assistance Act (TEFAP);269
• Child and Adult Care Food Program (CACFP);
• School lunch programs;
• Cash payments that are provided for childcare assistance or other supplemental, special purpose cash assistance;
• Cash payments that are provided as part of pandemic or disaster relief funds, such as the American Rescue Plan Act;
• Food Distribution Program on Indian Reservations (FDPIR);
• Services provided by the Indian Health Service (IHS), tribes and tribal organizations under the Indian Self Determination and Education Assistance Act (ISDEA), P.L.93-638, and Urban Indian Organizations (UIO), as defined at 25 U.S.C. 1603(29), that have a grant or contract with IHS under title V of the Indian Health Care Improvement Act (IHCIA), 25 U.S.C. 1603;
• Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) provided by local communities or through public or private nonprofit organizations;
• Attending public school;

Long-term Institutionalization at Government Expense

For the purpose of a public charge inadmissibility determination, “long-term institutionalization at government expense” means government assistance for long-term institutionalization (in the case of Medicaid, limited to institutional services under section 1905(a) of the Social Security Act) received by a beneficiary, including in a nursing facility or mental health institution.

Long-term institutionalization at government expense is the only category of Medicaid-funded services (limited to institutional services under section 1905(a) of the Social Security Act) considered in a public charge inadmissibility determination

If my relatives receive public benefits, is that considered receipt from me as well? 

The final rule defines “receipt” as occurring when the visa applicant or AOS applicant receives the public benefits, not those received by relatives or others on behalf of them. Even if you apply for a public benefit and are denied, then this also isn’t considered receipt. Until you actually receive the benefit, even if you are approved to receive it in the future, it isn’t considered a ‘receipt’.

Do prior receipt of public-charge benefits automatically disqualify you? 

Not necessarily, although this is something that should be thoroughly discussed with an immigration attorney.

The public charge determination applies to anyone who is seeking a visa, admission into the United States, or an Adjustment of Status. Factors that are taken into consideration by immigration officials include the applicant’s health, financial resources, education, age, etc.