Should Green Card Holders Stop Receiving Public Benefits in Case New Regulations Make Them Deportable?

Lawful permanent residents need not, in most cases, give up on receiving need-based public benefits in the United States.

Between 2018 and 2020, both the Department of Homeland Security (DHS) and the Department of State (DOS) have published new rules changing the standard used 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. These 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.

Effect of Public Charge Finding on Inadmissibility

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 U.S. government determines that, because of the applicant's low income, assets, financial support, health costs, or related reasons, he is likely to become a public charge, it can deny the visa or green card. What's more, for family-based applicants, 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, a green card holder can be found to be seeking admission to the U.S. and as such be found inadmissible for having stayed outside the U.S. for 180 days or more, 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.

Exceptions to Public-Charge Based Inadmissibility

There are major exceptions to the public charge ground of inadmissibility, creating categories of people who don't have to worry about the new rules 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.

Public Charge as a Ground of Removability (Deportability)

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.

Public Charge Not a Bar to Naturalization

Finally, public charge is not a bar to naturalization, so people 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. (See also, Will Receiving Public Benefits Hurt Your Chances of U.S. Citizenship?)

Who Will Be Most Affected by New Public Charge Rules

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 concerned that you might be subject to removal based on your use of public benefits or that you could be found to be seeking admission to the U.S., consult with an immigration attorney as soon as possible.