Receiving Public Benefits Could Lead to Denial of Visa or Green Card Under Proposed U.S. Regulations

Under a new proposed regulation, the U.S. government would consider many non-cash benefits that were not previously considered in determining if someone is, or could likely become, a public charge.

** LEGAL UPDATE **

The Department of Homeland Security (DHS) is expected to issue new regulations soon, which will make it more difficult for people who use public benefits to seek a visa or green card in the United States. Under federal immigration law the government can find a noncitizen inadmissible to the U.S. if he or she is, or will likely become, a “public charge.” Currently, a public charge is defined by the government a person who is “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

When considering whether someone will become a public charge immigration and consular officers now look to his or her “age, health, family status, assets, resources, financial status, and education and skills.” The government now also looks to the use of cash-based public benefits to determine whether someone is, or will likely become, a public charge. The public charge determination is made on a case-by-case basis, through consideration of the totality of the circumstances.

Which Public Benefits Could Subject Someone to a “Public Charge” Determination Now?

Under current regulations, people who receive cash public assistance benefits could be barred from the U.S. for being a public charge. Cash benefit programs include Temporary Assistance for Needy Families (TANF), state financial assistance programs that provide general income, and programs that support institutionalized long-term care.

Which Public Benefits Will Subject Someone to a “Public Charge” Determination Under the New Policy?

Under the new proposed regulation, the government will consider many common non-cash benefits that were not previously considered in determining whether someone is, or could likely become, a public charge.

These non-cash public benefits include educational benefits, health insurance benefits, food stamps, transportation benefits, tax credits, and public housing benefits. Under the regulation, the use of any of these programs for more than six months in the previous two years would be “heavily weighted” against the person in the public charge determination.

These non-cash public benefits include subsidized health insurance under the Affordable Care Act ("Obamacare"), Medicaid, Supplemental Nutrition Assistance Program (SNAP), Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), State Children’s Health Insurance Program (CHIP), and others. The regulations are even expected to include the Earned Income Tax Credit (EITC) as indication that an individual is a public charge.

The government will not consider use of emergency or disaster relief benefits or assistance provided by community or nonprofit organizations in making the public charge determination under the new policy. Furthermore, attending public school, receiving free school lunch, and foster care and adoption benefits will not be considered in making the public charge determination under the new regulation.

Who Is Exempt From the “Public Charge” Bar?

Certain people are not subject to the “public charge” bar and will not be under the new policy.

Notably, refugee and asylees are not subject to the bar, even when they later apply to adjust status to lawful permanent resident.

Others who are not subject to the public charge bar include Amerasian immigrants, Afghani and Iraqi Special immigrants, Cuban Adjustment Act immigrants, Central Americans adjusting status under the Nicaraguan Adjustment and Central American Relief Act (NACARA), Haitians adjusting status under the Haitian Refugee Immigration Fairness Act, Special Immigrant Juveniles, people applying for Temporary Protected Status (TPS), petitioners under the Violence Against Women Act (VAWA), and others.

Even people who are subject to the bar may apply for a waiver in certain circumstances, for example if they are disabled.

When Will the New Policy Take Effect?

The new regulation is still a draft proposal and has not been officially issued yet. After the regulation is issued in the Federal Register there will have to be a public notice and comment period, which will take another few months.

Any public benefits received before the regulation officially takes effect will not be weighted against someone seeking a visa or green card. If you believe you could be subject to the public charge bar under the new policy, be sure to consult an immigration attorney now, to determine the risks to your immigration status.

Effective Date of Proposed Regulations: March 28, 2018