Who is a Public Charge?

“Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.” So said Ken Cuccinelli, acting director of the United States Citizenship and Immigration Services office, in his modern interpretation of the Emma Lazarus poem famously inscribed on the Statue of Liberty.

This interpretation is in line with a regulation that USCIS has formally instituted in federal immigration law.

Although it has been a long-standing law in the U.S. immigration process, it goes into effect Oct. 15, 2019. The rule lays out how USCIS and the Department of Homeland Security will determine a legal immigrant’s inadmissibility for permanent residence or adjustment of status based on their potential to be a financial burden.

The rule also clearly defines “public charge” and “public benefit” as the following:

• Public charge: “an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)”
• Public benefit: “cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs”

If you are a legal immigrant applying for permanent residence or adjustment of status, your application may be deemed inadmissible if you receive certain types of public benefits. But there is a way to demonstrate financial independence.

“They’re trying to widen how somebody can be found to be a public charge,” says Minnesota immigration attorney Peter Nagell. “You have to show that the immigrant is not going to be a public charge, meaning that they’re not going to be dependent on public benefits.”

While petitioning for permanent residence or adjustment of status, Nagell says that a legal immigrant can get his or her sponsor to demonstrate that he or she won’t be a public charge.

“When [a sponsor] has enough money on their tax return, they file an I-864 affidavit support form,” says Nagell. This form establishes that the immigrant’s sponsor meets the financial threshold limits above the poverty line based on his or her household size. It shows that the sponsor will financially provide for the immigrant and that he or she will not be a public charge.

According to Nagell, if the immigrant’s sponsor is a family member that does not meet the threshold, anyone—even someone who is not related—can file as a joint sponsor if he or she meets the income requirement.

There are exceptions to the public charge rule. It does not apply to refugees or asylees, and there are provisions for members of the military and those with disabilities.

Nagell says the regulation is a “big, looming change,” but the overarching structure of immigration is the same. “All these tweaks around the corners can have serious impacts that could really hamper people, especially of modest or middle income means to come to the United States,” he says.

Heightened scrutiny, increased background checks, travel bans for certain national origins and the case backlog all contribute to delays in the petitioning process. Now, with the definitions of public charge and public benefit legally encoded, it’s helpful to work with an immigration attorney to ensure an efficient application process as possible.

For more information on this area of law, see our immigration overview.