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CIANA Explains: What is Public Charge? -Updated Edition

In October 2018, the Trump administration proposed a regulation that would expand those ineligible to enter the United States based on the kinds of government benefits they do or could receive. This proposed change has puzzled and concerned many on who a public charge is, and who would be affected by the new regulation. CIANA hopes this article will clear the confusion about this serious topic.

Who is a “public charge”? A “public charge” is someone who relies heavily on government benefits and is not financially independent. Public charge is a provision that has always existed in the Immigation and Naturalization Act (INA). Under Section 212(a)(4) of the INA, it states that if someone wants to visit the United States or apply for a legal permanent residency then their immigration application will be rejected if the individual is likely to become a public charge.

Who is affected by public charge laws as they stand?

The following immigrant statuses will be subject to review of public charge, which includes a review of their financial and family history, and health records:

  • Immigrants who hold non-immigrant visas and wish to become legal permanent residents

  • Immigrants who wish to visit the United States on a non-immigrant visa

People who are not affected by public charge laws can apply to for an adjustment of status -to change a non-immigrant immigration status such as a student or tourist visa to that of permanent residency or a green card. Those not affected include:

  • Current legal permanent residents

  • Refugees and asylees

  • Victims of human trafficking

  • Victims of domestic violence and other abuses

  • Special Immigrant Juveniles

Which benefits make someone a public charge?

If someone receives the following benefits, then they are a public charge and cannot apply for a green card:

  • Cash Assistance such as TANF or SSI

  • Institutionalized long-term care such as a nursing home through Medicaid

At this time, someone receiving the following benefits is not a public charge and can apply for an adjustment of status:

  • Medicaid (not emergency medicaid)

  • SNAP

  • Housing benefits

  • Medicare Part D

  • Children's Health Insurance Program (CHIP)

  • Unemployment compensation

If nothing has changed, then what would change with this proposed rule?

The proposed regulation wishes to expand the benefit programs that would classify someone as a public charge. If approved and the proposal becomes formal law, then it would include the following benefits as part of a review of public charge:

  • Medicaid (excluding emergency Medicaid)

  • SNAP

  • Housing benefits

  • Medicare Part D

  • Cash Assistance such as TANF or SSI

  • Institutionalized long-term care such as a nursing home through Medicaid

When will a decision be made?

A decision has not been made yet. In October 2018, the Department of Homeland Security (DHS) held a public commentary for 60 days on the proposed rule. This period allowed for the public to tell the government what they think of the proposal. Over 200,000 people sent in their concerns about the rule, and the DHS is currently reviewing them. CIANA will release information regarding the decision as updates happen.

For any other questions on public charge or to make an appointment with an immigration attorney, call CIANA at (718) 545-4040.

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