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The New Public Charge Rule – What You Need to Know

Authored By: Northwest Justice Project LSC Funded
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Find out here what has changed in the public charge rules. You can also read these for help deciding if, and when, to use the public assistance benefits you or your family members need. #8123EN

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Main things you need to know:

  • The public charge test does not apply to all immigrants.  It mainly affects people applying for Green Card status through family visa petitions. 

  • Immigrants subject to the public charge test and their families can still use many benefits, including most medical programs, without problems.

  • You should keep checking for updates on the public charge rules.  Legal challenges are still happening. The new presidential administration may change the rules again. 

 

What is the public charge test?

Some people who are applying for Green Card status or for a visa to enter the U.S. are subject to a “public charge” test.  The test looks at whether the person is likely to use or depend on certain government benefits in the future. 

Under the law, government officials must look at several things in the public charge test. These things include the immigrant’s income and resources (things the immigrant owns), health, education and skills, family size, and the affidavit of support filed for the immigrant.  The government may also consider the immigrant’s past use of certain benefits.   

 

Does the public charge test affect all immigrants?

No. It mainly affects people applying for Green Card status through the family visa petition (I-130) process.  Other categories of immigrants subject to the public charge rule include some employment-based visa applicants and people applying for diversity visas.   

Many categories of immigrants are not subject to the public charge test. These include:

  • asylees

  • refugees

  • self-petitioners under the Violence Against Women Act (“VAWA”)

  • U and T visa holders, and

  • Special Immigrants from Iraq and Afghanistan.

 

What has changed?

The Department of Homeland Security (DHS) and the Department of State (DOS) started using a new public charge rule on February 28, 2020.  Before this, a different rule had been in use since 1999 (the “old rule”).  

Several organizations and state Attorney Generals filed lawsuits challenging the new rule.  Court decisions keep changing about whether the government can use the new rule.  The new presidential administration will probably also make changes after January of 2021. 

Since the rules keep changing, we discuss here what you need to know no matter if the government is using the old or new public charge rules. 

 

How is the new public charge rule different from the old rule?

The new rule makes it harder for low- and moderate-income people to get their Green Cards.  For example, it treats these as “negative” factors in the test:

  • having a serious medical condition

  • not speaking English well

  • having a household income below 125% of the Federal Poverty Level ($32,750 for a family of four)

The new rule also lets immigration officers consider the applicant’s use of more types of benefits than the old rule does. These include:

  • cash assistance

  • federal food assistance (“SNAP”)

  • non-emergency Medicaid (with many exceptions, including Medicaid use by children under 21 and pregnant women)

  • section 8 and public housing.

Under the old rule, officials can only consider the applicant’s use of:

  • ongoing cash assistance (such as TANF or SSI)

  • long-term care in an institution (like a nursing home) paid for by the government.

 

 

I am applying for a Green Card through a family visa petition. Are there any benefits I can safely use?

Yes.  There are many programs government officials won’t consider in the public charge test, under either the old or the new rules.  These include:

  • testing and treatment for COVID-19

  • pandemic stimulus payments

  • Qualified Health Plans and subsidies

  • emergency Medicaid

  • Washington Apple Health used by children under 21 and pregnant women

  • the state-funded Food Assistance Program

  • unemployment insurance

  • school lunch and breakfast programs

  • pandemic EBT benefits

  • the women, infants and children nutrition program (“WIC”)

  • emergency or disaster-related programs, including the COVID-19 Immigrant Relief Fund

 

 

Are there benefits my family members can safely use? 

Yes.  They can safely use most benefits programs.

Food and medical benefits used by family members are safe.  Your family members can use any medical program, as well as food assistance. It will not count against you in the public charge test when you apply for your Green Card. 

This is true under both the old and new public charge rules. 

Regular cash benefits used by family members may be a problem. This is true under both the old and new rules. 

  • The old rule lets the government consider these benefits if they are your family’s only source of income. (Example: Your child gets SSI. No one else in the family has income from employment.)

  • The new rule doesn’t let the government consider any benefits used by family members, including cash benefits.  But if your family’s only source of income is cash assistance received by a family member, USCIS will probably find that your household’s income is too low to pass the public charge test.

  • Emergency cash benefits are safe under both the old and new rules. This includes the COVID-19 Immigrant Relief Fund. The rules treat emergency assistance differently from regular (ongoing) cash assistance programs such as SSI or TANF.

 

 

I’m afraid to use medical benefits. What should I do?

We encourage you to get the medical care you need.  Most immigrants who are subject to the public charge test are not eligible to get non-emergency Medicaid. It is the only medical program USCIS officials will consider in the public charge test.  Consular officials should not consider any medical benefit use at this time. 

Getting the care that you need and staying healthy may actually help you in the public charge test.  Get legal advice before deciding not to use medical benefits. See contact information below.

 

Does the public charge test apply to Green Card holders when they apply to become naturalized U.S. citizens?

No.  There is no public charge test for Green Card holders when they apply for naturalization or renew their Green Cards.  However, Green Card holders who use benefits should try to limit trips outside the U.S. to less than 6 months (in a single trip).  Green Card holders who use benefits and who have taken a trip outside the U.S. of over 6 months should get legal advice before applying for U.S. citizenship. 

 

Where to get legal advice:

Contact Northwest Justice Project:

Visit Northwest Justice Project to find out how to get legal help. 

Contact Northwest Immigrant Rights Project:

Seattle Office - serving Island, King, San Juan, Skagit, Snohomish, and Whatcom counties: 206.587.4009 or 1-800.445.5771

Tacoma & South Unit (TSU) – serving Clallam, Clark, Cowlitz, Grays Harbor, Jefferson, Kitsap, Lewis, Mason, Pacific, Pierce, Skagit, Skamania, Thurston, and Wahkiakum counties: 206.816.3893 or TSUintake@nwirp.org

Granger Office - serving Adams, Asotin, Benton, Columbia, Franklin, Garfield, Kittitas, Klickitat, Yakima, Walla Walla, and Whitman counties: 509.854.2100 or 888.756.3641

Wenatchee Office - serving Adams, Chelan, Douglas, Ferry, Grant, Lincoln, Okanogan, Pend Oreille, Spokane, and Stevens counties: 509.570.0054 or 866.271.2084

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Last Review and Update: Dec 23, 2020
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