On August 14, 2018, the Department of Homeland Security (DHS) published new rules changing the standard it uses to determine whether a visa or green card applicant is likely to become a “public charge.” Under the new regulations, the use of many non-cash public benefits could lead to a public charge determination.
Just before the rules' October 15, 2019 effective date, however, a federal court put a hold on them, in response to a pending lawsuit. The final outcome remains to be seen, however. In the meantime, the new rules have led to widespread concern about whether people who are already legally within the U.S. with a green card need to drop their receipt of any benefits.
If the government determines someone is likely to become a public charge, he or she is inadmissible to the U.S. and his or her green card or visa application will be denied.
Non-citizens who do not yet have a green card are at the greatest risk of being negatively affected by the new policy. This is because when someone with a temporary visa applies to renew that visa or applies to adjust status to legal permanent resident (applies for a green card), the applicant will have to show he or she is “admissible.”
If the government determines that, because of the applicant's low income, assets, financial support, or related reasons, he is likely to become a public charge, it will deny the visa or green card. Having a Form I-864 Affidavit of Support filled out by a financial sponsor on your behalf no longer carries as much weight as it once did.
Someone who already has a green card, however, does not normally need to worry about inadmissibility, unless he or she falls into an exception; for example, stayed outside the U.S. for 180 days or more or committed a crime while abroad.
There are major exceptions to the public charge ground of inadmissibility, creating categories of people who don't have to worry about this new rule at all.
Refugees and asylees are not subject to the public charge bar, even when they later apply to adjust status to lawful permanent residents.
Others not subject to the 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.
Immigrants who already have a green card have, technically speaking, been “admitted” to the U.S., and are therefore not ordinarily subject to the grounds of inadmissibility.
There are, however, situations in which a green card holder can be found to be seeking admission to the U.S. and therefore inadmissible. This includes cases where the green card holder abandoned his or her U.S. residence by living outside of the U.S. for a significant period of time, departed while in removal proceedings, or committed certain criminal offenses. If any of these are true of you, speak to an attorney about whether (most likely upon your return to the U.S.) you might be denied entry due to the public charge ground of inadmissibility.
Becoming a public charge is also a ground of removability, meaning it, in theory, could lead to a green card holder who is in the U.S. being put into removal (deportation) proceedings.
Under current case law, however, a person can be put into removal proceedings for being a public charge only if he or she meets a three-part test: (1) a “[s]tate or other governing body must … impose a charge for  services rendered to the alien,” (2) “authorities must make demand for payment of the charges” within five years of the alien’s entry into U.S., and (3) the person must fail to pay the required charges.
Therefore, it is unlikely that many green card holders will be put into removal proceedings for simply using public benefits to which they are legally entitled.
Finally, public charge is not a bar to naturalization, so those with a green card should not be concerned that the lawful use of public benefits will lead to their U.S. citizenship applications being denied in the future.
While green card holders should be aware of the risks of using public benefits in light of the new policy, they are in far less danger of being affected than people who have not yet been admitted to the U.S. as legal permanent residents.
If you are concerned that you may be subject to removal based on your use of public benefits or could be found to be seeking admission to the U.S., it is important to consult with an immigration attorney as soon as possible before the final rule takes effect, which will likely happen near the end of 2018.
Effective date: October 14, 2019