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When Is It Safe For Immigrants To Get Benefits? Changes to Public Charge Rules

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. #8121EN

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Introduction

Proposed Changes - Applying for Status Inside the U.S.

Changes for People Applying for Green Cards Outside the U.S.

If you already have your green card

 

Introduction

 

What is public charge?

Public Charge is a term in immigration law.  It refers to someone who depends on government assistance to meet their basic needs.  The U.S. government can deny Lawful Permanent Resident (“green card”) status or entry into the U.S. to certain immigrants if they appear likely to become a public charge in the future.

Public charge has been part of federal immigration law for decades.  The federal government is taking steps to changehow it appliesthe public charge test. This has raised concern about when it is safe for immigrants and their families to get public assistance.

Should I read this? 

Read this

  • To find out whathas and has not changed about public charge rules 

  • For help deciding if, and when, to use benefits you or your family members need 

How does the government decide if an immigrant is likely to become a public charge?

Under the immigration laws, the government must consider several factorsin the public charge test, including the immigrant’s age, health, family status, income, savings and property, education, and skills. The government cannot base its decision on just one factor. The government must also look at whether the immigrant is likely to become a public charge in the future.    

Are all immigrants subject to the public charge test when applying for Green Card status?

No. The test mainly applies to people applying for green card status through a visa petition filed by a family member.  These categories of immigrants are NOT subject to the public charge test:

  • Refugees

  • Asylees

  • T visa applicants and holders

  • Domestic violence survivors who get immigration relief under the Violence Against Women Act (VAWA)

  • U visa applicants and holders

  • Special Immigrants from Iraq and Afghanistan

  • Cubans and Nicaraguans eligible under the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA)

  • Special Immigrant Juveniles

  • Registry applicants (people who have been in the U.S. since 1972)

Proposed Changes - Applying for Status Inside the U.S.

 

How has the government changed the public charge test for green card applications inside the U.S.?

The Department of Homeland Security (“DHS”) published a new rule changing how immigration officers apply the public charge test. These changes affect immigrants applying for green cards with U.S. Citizenship and Immigration Services (USCIS) in the U.S.  This process is called adjustment of status

When does the new rule take effect?

The rule applies only to applications postmarked or electronically submitted on or after October 15, 2019.  It does not apply to applications pending before that date. 

Many lawsuits have been filed challenging the new rule.  Because of this, it is possible the rule or parts of it will not take effect until after October 15, 2019.

What does the new rule change?

It changes the definition of public charge and expands the types of public benefits immigration officials must consider in deciding if you are likely to become a public charge.  It also lists positive and negative factors immigration officials must consider when applying the public charge test. 

What benefits does USCIS currently consider in the public charge test? 

Currently, USCIS only considers the immigrant’s use of these:

  • cash assistance

  • Long-term care in an institutional setting, such as a nursing home, that is paid for by the government   

What benefits will USCIS consider in the public charge test under the new rule?

The new rule requires USCIS to consider the immigrant’s use of:

  • Medicaid – with some exceptions, including emergency Medicaid and coverage for children under 21 and pregnant women (see below)

  • Federal food stamps  

  • Federally subsidized housing, including public housing and section 8 housing assistance

  • Federal, state, or local cash assistance - including SSI, TANF, State Family Assistance, and the Aged Blind, and Disabled Program

Are there benefits USCIS will NOT consider under the new rule?

Yes. USCIS will only consider the programs listed in the rule. 

USCIS will NOT consider:

  • benefits used by the immigrant’s family members

  • emergency medical assistance –including emergency medical treatment received in a hospital setting, cancer treatment, and dialysis

  • Medicaid used by children under 21 and pregnant women

  • the state-funded Medical Care Services program

  • disaster relief - help after a natural disaster like an earthquake or a flood

  • Washington’s state-funded Food Assistance Program (ask your caseworker if you are on this program)

  • benefits used by members of the U.S. Armed Forces and their family members

  • certain Medicaid disability services related to education or received at school

  • Medicaid used by some foreign-born children of U.S. citizens

  • Qualified Health Plans purchased on Healthplanfinder, and tax credit and subsidies to help with the costs

  • Tax credit programs, including the Earned Income Tax Credit

  • the Women, Infants and Children (WIC) nutrition program

  • school breakfast and lunch programs

  • medical treatment received at health clinics

  • immunizations and testing and treatment of symptoms of communicable disease

  • benefits, other than cash or long-term care at government expense, used before October 15, 2019

I am applying for a green card with USCIS.  My U.S. citizen children get food and medical assistance. Will this be a problem?

No. Under the new rule, USCIS will only consider benefits received by you – the applicant. 

Your children and spouse can get food or medical assistance without it affecting your application for status. 

My child applied for a green card with USCIS. She uses medical benefits. Will this be a problem?

No. Under the new rule, medical benefits used by a child under age 21 are not considered in the public charge test. 

I am applying for my green card.  I used one of the benefits listed in the new rule. Will USCIS automatically deny my application? 

No. USCIS must consider all your circumstances. They cannot deny your application because of just one factor, such as using public benefits. You can try to show positive factors to strengthen your case. This can include things like attending job training or ESL classes, or an increase in your family’s income. 

I am in the U.S. on a non-immigrant visa.  I want to apply to extend my stay in the U.S.  Will the public charge rule affect me?

Yes. USCIS can look at whether you have gotten any of the public benefits listed in the rule for over 12 months total in a 36-month period since you were granted non-immigrant status. Non-immigrants generally are not eligible for any of the listed benefits, so this new test probably will not affect you.
 

Changes for People Applying for Green Cards Outside the U.S.

 

Has the federal government changed the public charge test for green card applications outside the U.S.?

Yes.  

Some people must apply for green card status outside the U.S. at a consulate.  In January 2018, the federal government changed the rules consular officials must follow when applying the public charge test.

I have to apply for a green card outside the U.S. How will the changes affect me?

Consular officials can consider the use of noncash benefits, such as food or medical assistance, by you and your family members. Before, consular officials only considered cash assistance or government-funded long-term care. They only considered benefits used by family members if they were the family’s only source of support. 

Consular officials must still consider several factors in the public charge determination. They cannot base their decision just on the use of benefits by you or family members. 

*The government has indicated that it will probably make the rules for consular officials the same as the rules for people applying for green card status inside the U.S.

I do not know if I have to apply for my green card outside the U.S. How can I find out?

See an immigration attorney. See resources at the end of this publication. 

If you already have your green card

 

I have a green card. Can the government deport me if I use public benefits?

Under the law, the government can only deport someone on public charge grounds in extremely limited situations.  Both these would have to be true:

  • You became a public charge within five years of entry to the US

  • For reasons that existed before you entered

Example:  Two years after coming to the U.S., you are in an accident. You become dependent on government assistance. You are not subject to the public charge ground of deportation. The reason you need assistance arose after you entered the U.S.

The government has deported very few people on public charge grounds. The new rule does not address the public charge ground of deportability.

I have a green card. I use public benefits. Will there be a public charge test when I renew my green card?

No.   

I have a green card.  I use public benefits. Will this be a problem when I apply to become a U.S. citizen?

No. The public charge test does not apply to green card holders when they apply to become naturalized citizens. This is the law. A rule cannot change it.

However, you should limit trips outside the U.S. to less than six months.  If you use benefits and leave for more than six months, you may have a hard time re-entering the U.S.  It may also be harder for you to petition for family members if you use public benefits.

I have a green card.  I use public benefits.  How can I prevent problems with my immigration status?

  • Always give true and complete information to welfare offices such as the Department of Social and Health Services (DSHS) and the Health Care Authority (HCA).  Report any income or household changes right away. 

  • Tell welfare offices if you will be outside the state, including for travel abroad, for more than a month.  Do not let other people use your benefits while you are away. 

  • Avoid trips outside the U.S. for more than 180 days.  If you are gone longer, the government may keep you from returning under public charge rules. 

  • Get legal advice about your situation.  Stopping benefits may not help your immigration case.  Having medical care and enough food may help you to work and support your family.   

If I apply for benefits, will the welfare office share my information with immigration officials?

No. Federal and state laws protect the privacy of information you put in benefits applications. You only have to give immigration information for the people in your household who are applying for benefits.  Benefit agencies generally may share information with other government agencies only for purposes of administering the programs.

What if I still have more questions after reading this?

Talk with your immigration attorney, or contact:

CLEAR at 1-888-201-1014 (M-F, 9:15 am – 12:15 pm)
OR
Northwest Immigrant Rights Project:

  • 800-445-5771 (Western Washington)

  • 888-756-3641 (Asotin, Benton, Columbia, Franklin, Garfield, Kittitas, Klickitat, Walla Walla Whitman & Yakima counties)

  • 866-271-2084 (Adams, Chelan, Douglas, Ferry, Grant, Lincoln, Okanogan, Pend Oreille, Spokane & Stevens counties)

 

This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice.
This information is current as of September 2019.

© 2019 Northwest Justice Project — 1-888-201-1014.
(Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial use only.)

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Last Review and Update: Aug 31, 2019
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