Who Is a Public Charge?
The answer depends on federal immigration rules that have changed in recent years
By Amie Stager | Reviewed by Canaan Suitt, J.D. | Last updated on December 15, 2023 Featuring practical insights from contributing attorney Peter M. NagellUse these links to jump to different sections:
- October 2019: Trump Administration Implements Public Charge Rule
- March 2021: The Biden Administration Formally Rescinds the Trump-Era Rule
- December 2022: Biden Administration Implements a Narrower Public Charge Rule
- Find an Experienced Immigration Law Attorney
Federal rules and regulations have a tendency to change based on who occupies the White House. The public charge rule is one example of an important immigration policy that changed from one Presidential administration to another. Here is an overview of recent changes.
October 2019: Trump Administration Implements Public Charge Rule
“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, then-acting director of U.S. Citizenship and Immigration Services (USCIS), in his interpretation of the Emma Lazarus poem famously inscribed on the Statue of Liberty. This interpretation was in line with a regulation the USCIS formally instituted in 2019 under the Trump administration.
Although it had been a long-standing law in the U.S. immigration system, the rule that went into effect on October 15, 2019, broadened the public charge test. Previously, only cash benefits were considered. The new rule expanded the test so that immigration officers and the Department of Homeland Security (DHS) would also look at Medicaid, food stamps, and public housing assistance to determine a legal immigrant’s inadmissibility.
The rule defined “public charge” and “public benefit” in the following way:
- 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 Nutrition Assistance Program (SNAP), most forms of Medicaid, and certain housing programs.”
There were exceptions to the public charge rule. It did not apply to refugees or asylees, and there were provisions for members of the military and those with disabilities.
What Was the Effect of the 2019 Public Charge Rule?
“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.”
Nagell explains that the regulation was a “big, looming change” but that the overarching structure of immigration law remained the same. “All these tweaks around the corners can have serious impacts that could really hamper people, especially those with modest or middle income means, to come to the United States.”
March 2021: The Biden Administration Formally Rescinds the Trump-Era Rule
On February 2, 2021, President Biden issued an executive order directing the heads of the relevant federal agencies (including the Department of State and the DHS) to review all agency actions related to implementing the public charge ground of inadmissibility, the rule’s impact on immigrant families, and to give proposed changes.
The next month, on March 11, 2022, the Biden administration formally rescinded the Trump-era rule.
December 2022: Biden Administration Implements a Narrower Public Charge Rule
On September 8, 2022, the Biden administration announced a new public charge rule that went into effect on December 23, 2022.
The final rule restored the understanding of “public charge” that had been in effect prior to the 2019 change. The rule does not consider receipt of public benefits such as Medicaid, food stamps, or other noncash benefits in its public charge determinations.
Instead, the DHS will consider the applicant’s “age; health; family status; assets, resources, and financial status; education and skills,” and whether they have received:
- Supplemental Security Income (SSI);
- Cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF);
- State, Tribal, territorial, or local cash benefit programs for income maintenance ( “General Assistance”); or
- Long-term institutionalization at government expense.
Find an Experienced Immigration Law Attorney
As this overview of recent changes to the public charge rule indicates, immigration law is complex and often changes. If you have questions about any part of the immigration process, reach out to an experienced immigration law attorney for guidance.
For general information on this area of law, including the process of obtaining a green card and becoming a U.S. Citizen, see our immigration law overview.
What do I do next?
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