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New Public Charge Rule: Is it still safe to get benefits?

Authored By: Northwest Justice Project - CLEAR Intake Line LSC Funded
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Read this to find out what has changed and what has not changed in the public charge rules and also to help you decide if, and when, to use the public assistance benefits that you or your family members need. #8118EN


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Courts Block New DHS Public Charge Rule

On October 11, 2019, three different federal courts entered injunctions (temporary orders) stopping the Department of Homeland Security's new "public charge" rule from taking effect. 

The new rule would apply to applications filed with USCIS inside the U.S.  It would make it much harder for some low- and moderate-income immigrants to get green cards. It would require immigration officials to consider more types of benefits in the public charge test.

What do the court injunctions mean?

They mean that the new rule is on hold.  USCIS will NOT start using the new public charge rule to decide applications for now. USCIS must wait until the courts make final decisions about whether the rule is legal. 

USCIS will continue to decide applications using the existing public charge guidance.  That means immigration officials will only consider an immigrant's use of:

  • Cash assistance

  • Government funded long-term care in an institutional setting, such as a nursing home

Immigration officials will not consider an immigrant's use of medical programs, food assistance, or housing assistance.  They will consider use of assistance by family members only if it is the family's only source of income, such as a TANF grant for a family with no other income.

Does the public charge test affect all immigrants?

No.  It mainly affects people applying for green card status through the family visa petition process.

Under the law, many categories of immigrants are exempt (excused) from the public charge test. These exempt immigrants include asylees, refugees, self-petitioners under the Violence against Women Act, U and T visa holders, and Special Immigrants from Iraq and Afghanistan. 

What about immigrants applying for entry or green card status outside the U.S.?

On October 10, 2019, the Department of State ("DOS") published a new public charge rule. It is supposed to start October 15, 2019. This new rule affects people when they apply to enter the U.S. or for immigrant visas at a U.S. Consulate outside the U.S.  It is a lot like the DHS rule the courts barred. It may also face legal challenges.

Under the DOS rule, consular officials can consider the immigrant's use of:

  • cash assistance

  • non-emergency Medicaid (there are exceptions to this)

  • the federal food stamp program ("SNAP")

  • some subsidized housing programs, such as section 8 and public housing 

Consular officials will not consider state or locally funded programs. They will not consider many medical programs. These include emergency Medicaid, Qualified Health Plans purchased on Healthplanfinder, and Washington Apple Health for children under 21 and pregnant women.  Consular officials will not consider use of benefits by a family member.

Last Review and Update: Oct 17, 2019