The U.S. Department of Homeland Security’s (DHS) new public charge rule took effect on Feb. 24, 2020, applies nationwide, and affects people applying for green cards and visas from within the United States. The main impact of the new rule will be felt by applicants for adjustment of status. Nonimmigrants seeking to change or extend their status are subject to the new rule but face a substantially reduced burden compared to adjustment applicants.
The Feb. 24, 2020 change expanded the definition of “public charge,” so that green card and other visa applicants could be denied if they are “more likely than not” would use certain public benefits at any point in the future.
A “public charge” denial would be triggered if someone has received one or more of the below listed public benefits, for more than 12 months in aggregate within any 36-month period. Receipt of two benefits in one month counts as two months.
Benefits Included for Public Charge
- Cash Support for Income
- Non-Emergency Medicaid**
- Supplemental Nutrition Assistance
Program (SNAP or Food Stamps)
- Housing Assistance (Public Housing
or Section 8 Housing Vouchers and
* Included under current policy as
** Exception for coverage of children
under 21, pregnant women (including
60 days post-partum)
Benefits Excluded from Public Charge
- Disaster relief
- Emergency medical assistance
- Entirely state, local or tribal
programs (other than cash
- Benefits received by
immigrant’s family members
- Special Supplemental Nutrition
for Women Infants and
- School Breakfast and Lunch
- Energy Assistance (LIHEAP)
- Transportation vouchers or non
cash transportation services
- Non-cash TANF benefits
- Tax credits, including the
Earned Income Tax Credit and
Child Tax Credit
- Advance premium tax credits
under the Affordable Care Act
- Pell grants and student Loans
When will immigrants be penalized for receiving public benefits?
The list of prohibited public benefits programs is clear enough. But when will an applicant facea negative public charge determination specifically because of receiving public benefits? First off, note that the Final Rule is prospective only. Use of public benefits prior to the effective date of the new rule will be treated under the old public charge standard that has
been in effect since 1999. The programs that were considered under the old rule were: cash assistance for income maintenance, including SSI, TANF, state and local cash assistance programs that provide benefits for income maintenance (i.e., general assistance), Medicaid, and institutionalization for long term care. The rule is clear that, “DHS will not consider as a negative factor any other public benefits” received prior to implementation of the Final Rule.
What additional forms I will need to file along with the Application for Adjustment of Status?
Prior to the new rule, the focus of public charge determination has been the Form I- 864, filed by one or more sponsors of the adjustment of status applicant. Now, the focus shifts from the sponsor and onto the intending immigrant herself. Adjustment of status applicants are now required to file a new Form I-944, Declaration of Self-Sufficiency. This 19-page form examines a host of considerations about the applicant, including her: Work history; Work skills and educational history; English language ability; Financial circumstances, including both assets and financial liabilities; and Receipt of or certification for receipt of public benefits.
The Form I-944 will be required as initial evidence for the adjustment application, so failure to file it will result “in a rejection or a denial of the Form I-485 without a prior issuance of a request for Evidence or Notice of Intent to Deny.
What if I am applying for green card through the consular processing?
The rule does not apply to consular processing cases. Immigrant visa applicants are not subject to the new standard announced in the rule and are not required to submit the Form I-944.
Who would be affected by this policy change?
Green card applicants who apply from within the US Temporary visa applicants seeking change or extension of status.
Who is exempted?
Refugees, asylees, individuals who have experienced domestic violence, and other special
What impact will the changes have on applicants?
Denying marriage green card applicants denying family based green card applicants
What does this mean for me?
Consult with the experienced Immigration Attorney if you are applying for adjustment of status
in the U.S.