Public Charge: Questions and Answers

U.S. citizens and lawful permanent residents who wish to sponsor a family member for a green card and foreign nationals who seek to obtain a green card may encounter the term “public charge.” Public charge in the context of U.S. immigration law may be a confusing term to many people. People may wonder what it is about, whether it applies to them, what public benefits are considered, and how public benefits may affect their immigration case, etc. In this article, we will answer some commonly asked questions about public charge.

1.      What is public charge in U.S. immigration law?

Public charge, in the context of U.S. immigration law, is one of the reasons that a foreign national’s application for a visa, green card, or admission into the United States may be denied (“a ground of inadmissibility”). A foreign national may be denied a visa, green card, or admission into the United States if an immigration official, when reviewing the applicant’s total circumstances, found that the applicant is “likely at any time to become a public charge.” To put it in different words, “to become a public charge” means that a person is likely to be primarily dependent on the U.S. government for support. When an immigrant official reviews a foreign national’s application for a visa, green card, or admission into the United States, the official commonly evaluates all of the applicant’s circumstances and determines whether the applicant will likely become primarily dependent on the government for support.

To make the public charge determination, immigration officials usually at least consider factors such as the applicant’s age, health, family status, financial status, education and skills. Other factors immigration officials may consider include the affidavit of support (Form I-864), whether the applicant has received public cash assistance for income maintenance or being institutionalized for long-term care at the government’s expense, etc.

2.      What public benefits are considered?

Immigrant officials may consider two types of benefits:

a)      Public cash assistance for income maintenance, such as:

• Supplemental Security Income (SSI);

• Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program; and

• State, Tribal, territorial, or local cash benefit programs for income maintenance.

b)      Long-term institutionalization at government expense, such as Medicaid for long-term institutionalization.

3.      What benefits are not considered?

Generally speaking, benefits other than the two types of benefits listed above are not considered. In most circumstances, only benefits received by the non-citizen applicant are considered, which do not include benefits received by the non-citizen applicant's relatives such as spouse and children. Further, most non-citizens that are subject to the public charge test are typically not eligible for public benefits. Some commonly available benefits that are not considered may include:

• Nutritional programs, such as Supplemental Nutrition Assistance Program (SNAP), Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), and school lunch programs;

• Housing benefits, such as Section 8 and rental assistance;

• Medicaid (except for long-term institutionalization);

• Children's Health Insurance Program (CHIP); and

• Other non-cash, supplemental, or special purpose benefit programs.

Immigration laws and policies are constantly changing. If you have specific questions related to your individual circumstances, such as whether a benefit you receive will be considered, we strongly recommend you to consult with an experienced immigration attorney.

4.      Who are subject to the public charge test?

Generally speaking, non-citizens who apply for a visa abroad and non-citizens who apply for a green card in the United States by filing an application to adjust status (Form I-485), are subject to the public charge test. However, some non-citizen applicants are exempted from the public charge test, for example:

• Asylees and refugees;

• Special immigrant juveniles;

• Applicants seeking Temporary Protected Status;

• Human trafficking victims (T nonimmigrants);

• Victims of qualifying criminal activity (U nonimmigrants); and

• Self-petitioners under the Violence Against Women Act.

You may visit the USCIS’s webpage on “Public Charge Resources” for a more comprehensive list of applicants who are exempt from the public charge test. If you have specific questions regarding your individual situation, we recommend you to get legal help.

5.      Who are not subject to the public charge test?

The public charge test generally applies to non-citizens who are applying for immigrant benefits, and as discussed above, certain types of applicants are exempted from it. In addition, the public charge test, in most circumstances, does not apply to U.S. citizens and green card holders. If you are a U.S. citizen, or a green card holder looking to apply for naturalization or renew your green card, the public charge test most likely does not apply to you.

6.      What is an Affidavit of Support (Form I-864)?

An Affidavit of Support (I-864) is a way to show adequate means of financial support for the purposes of public charge determination. It is one of the factors immigration officials may consider when they evaluate the intending immigrant’s total circumstances. An Affidavit of Support completed by the petitioner is normally required for most family-based applications and some employment-based applications. Broadly speaking, an Affidavit of Support (I-864) is essentially a contract between the signing sponsor and the U.S. government, for the signing sponsor to show that he or she has enough income and/or assets to provide financial support to the intending immigrant and agreeing to provide support to the intending immigrant when necessary. We will cover Affidavit of Support in greater detail in the next article, please stay tuned.

Immigration law is an ever-changing area of law; thus, we highly recommend you to work with a legal counsel for the most up-to-date and detailed information. It will save you valuable time and frustration in the process. We are looking forward to working with you in meeting your immigration needs. Contact us.

This article is also available in Traditional Chinese and Simplified Chinese.

Disclaimer: The information on this website is provided for general informational purposes only and is subject to change without notice. It does not, and is not intended to, constitute legal advice. Accessing or using information on this website does not create an attorney-client relationship between you and the Firm, and it is not intended to do so.