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Public Charge Test

This article about the public charge test was written by Texas Legal Services Center - Medical-Legal Partnerships. 


Note that a federal judge on Wednesday July 30, 2020, blocked the “public charge” rule — which allows the government to deny legal permanent residency to many immigrants who have received public benefits — during the coronavirus pandemic and while a legal challenge makes its way through lower courts.  The ruling means for the time being the Trump Administration cannot continue denying green cards to many migrants who use Medicaid, food stamps, housing vouchers, or other forms of public assistance. See more here.

The Immigrant Legal Resource Center (ILRC) provides immigration legal training on emerging issues, policy updates, and effective practices. The following link is to a wide range of seminars and webinars that address basic immigration law topics, all the way through cutting edge policies and regulatory changes. See the Fall 2020 Training Calendar here.

What does it mean to be a public charge?

A new U.S. Department of Homeland Security rule may make it harder for lower-income people to go through the lawful immigration process and get a green card (also known as Lawful Permanent Resident status or LPR). Until recently, the public charge test applied generally only to immigrants receiving SSI, TANF, or Long-Term Care Medicaid, but it wasn't often used to deny immigrant status.


What has changed?

Starting February 24, 2020, the new rule adds other benefit programs to the list, including SNAP (food stamps), Section 8 vouchers and subsidies, other subsidized housing, and most types of Medicaid (Note: But not Medicaid for children up to age 21, for pregnant women up to 60 days after giving birth, for emergencies, or for school-based services). The rule does not apply to benefits received by a child or relative. In other words, if a child gets benefits, the immigrant parent is not affected.

The rule also creates categories of negative and positive factors. Negative factors include lacking English proficiency, poor credit history, and immigration fee waivers for admission and getting a green card. Positive factors include private health insurance, other sources of support, education, job skills, a job offer, or family members with a steady income. In other words, the major effect of the rule is that it changes the way we have to think about legal immigration under the law.

Each family should consider their own situation and weigh the benefits of getting help versus not getting help. For example, temporary receipt of public benefits might provide the kind of stability that allows a family better long-term prospects. For someone who is old and dying, it may not matter if they are subject to the public charge test because they may not live long without care.


Who is never a public charge?

The Trump Administration changed an administrative rule, but only Congress can change federal law. Under federal law, the following categories of noncitizens are not subject to a public charge test: refugees; asylees; survivors of trafficking, domestic violence, or other serious crimes (T or U visa applicants/holders); VAWA self-petitioners; special immigrant juveniles; certain people paroled into the U.S.; and several other categories of immigrants. People with green cards, called Legal Permanent Residents or LPRs, are not subject to a public charge test when they apply for U.S. citizenship or when they renew their green card. Also, if the person is not applying for immigration status, public charge does not matter.


When does the public charge test apply?

  • The new rule takes effect Febrauary 24, 2020 and it is not retroactive. This means that immigration applications and petitions received before February 24, 2020, will not use the new rule. It also means that any newly included benefits—SNAP, Medicaid, and housing—that were received before this date are not counted.


  • The public charge test applies:
    • If a benefit is received for more than twelve months in a given thirty-six month period. Each benefit counts separately–that is, if two benefits are received in one month, it counts as two months.
    • If a benefit is being currently received when the immigration application is turned in.


*Note that seeking medical treatment or preventive services for Coronavirus (COVID-19) will not negatively affect any individual as part of a future Public Charge analysis. Also, if someone is subject to the new public charge test and COVID-19 policies cause a loss of job or school that results in need for public benefits during the COVID-19 outbreak and recovery phase, the benefits may not be a negative factor if supporting documentation is turned in with the immigration application. Read more here.