“Public Charge” is defined as a ground of inadmissibility, or a reason why an individual may be denied a green card, visa, or entry to the US. A public charge is someone who lacks the resources or ability to take care of themselves. An individual who is likely to become a public charge is ineligible to become a legal permanent resident (LPR) which is also known as a green card holder. The rule only applies to individuals who are seeking to become an LPR. LPRs may be targeted to take a Public Charge test if they leave the country for more than 180 consecutive days. In rare cases, an immigrant, even if they are an LPR, may be subject to deportation if they become a public charge within 5 years after entering the US. The Public Charge Rule does not apply to every immigrant and has  the following exceptions: refugees, asylees, certain T and U nonimmigrant visa applicants including human trafficking, self-petitioners under the Violence Against Women Act

The Public Charge Rule was designed to identify individuals who cannot support themselves and depend on benefits that provide cash such as Supplemental Security Income (SSI), Temporary Assistance for Needy People (TANF), state or local general relief, and long term care at a nursing home paid by the government. The Public Charge Rule does not prevent immigrants from applying for assistance as the use of benefits will not automatically make an individual a public charge. Programs not included in the public charge test include:

• Medicaid programs 
• COVID-19 testing, treatment, vaccinations
• Nutrition programs such as SNAP and WIC
• Public housing and other housing assistance

Origins

The Public Charge Rule finds its roots in poor laws which established governmental authority to provide aid to the poor. The laws became prominent during the 19th century where the US experienced an influx of immigrants from southern and eastern Europe. The poor laws established the number of years individuals must have resided in a town before they became eligible for public aid, and required local governments to provide the basic needs of residents who were unable to provide for themselves. Government officials prohibited dependent individuals, or those who were likely to become dependent, from residing in the jurisdiction they had not already established residency at the time they were impoverished. These poor laws later transformed into state immigration laws governing the admission and removal of non-citizens. Supporters were concerned with individuals who would become a burden to the community by depending on public relief so states sought to protect themselves. For example, anti-Irish sentiment led to an 1837 law in Massachusetts which authorized the exclusion of immigrants who had been, “impoverished in any other country, or who suffered from health conditions that would prevent them from supporting themselves.” 

The Immigration Act of 1882, the first act to regulate immigration at the federal level, allowed the government to prevent any individual “unable to take care of himself or herself without becoming a public charge” from entering the country. The act later legalized the deportation of any individual who was likely to become a public charge within a year. However, it did not define how a public charge should be identified, which allowed immigrant officials to determine who could enter the US and exclude those who were likely considered to become a public charge.

In 1999, the Department of Justice passed the Field Guidance on Deportability and Inadmissibility on Public Charge Grounds which clarified the definition of the public charge rule. Under this Guidance, a public charge is a person who will become dependent on the federal government for cash, income maintenance, or institutionalization for long-term care at the government expense. The guidance emphasized that immigrant officers should not place any weight on the receipt of non-cash public benefits, besides institutionalization, when determining noncitizens who want to enter the US or their LPR status.

The Trump Administration redefined the Public Charge Rule, which went into effect on February 24th, 2020, as a non-citizen who receives one or more public benefits for more than 1 year within any 3 year period. The Administration expanded the types of government benefits that could disqualify immigrants from obtaining green cards to include non-cash benefits such as Medicaid, public housing assistance, and SNAP. In addition, the Trump Administration relied on the “totality of circumstances” test to predict whether a person will become a public charge in the future based on their age, health, family status, income and resources, skills, and education. The rule also explains how the Department of Homeland Security (DHS) will interpret the minimum statutory factors for determining whether an individual is likely to become a public charge by considering a list of negative and positive factors. It directs the DHS and immigration officers to consider these factors in the totality of the individual’s circumstances. For example, a characteristic that is considered a negative factor that increases the likelihood of someone becoming a public charge is having income below 125% of the federal poverty level which is $28,787 for a family of 3 as of 2022. The DHS acknowledges that one likely outcome of this change is that some individuals who may have been eligible to immigrate under the 1999 Interim Field Guidance will now be deemed inadmissible. The 1999 Interim Field Guidance did not clarify how to evaluate statutory factors, like age and health. The totality of circumstances test provides the legal standards and factors which individuals must meet to demonstrate they are not likely in the future to become a public charge. 

The Biden Administration withdrew the 2019 Public Charge Rule in March 2021, causing the US Citizenship and Immigration and Citizenship Services (USCIS) to stop applying the rule to all pending applications and petitions. However, the Biden Administration proposed a new public charge rule which would largely codify the 1999 field guidance. The proposed rule would drop the Supplemental Nutrition Assistance Program (SNAP), the Children’s Health Insurance Program (CHIP), and pandemic assistance from those programs that would affect a public charge determination. 

Support for the Public Charge Rule

Advocates for the Public Charge Rule tend to embrace two core beliefs: self-reliance is a fundamental American value, and immigration should benefit American citizens.

• Self-reliance: many believe that hard work and self-reliance lay at the core of the American ethos. A common narrative in the US discusses immigrants entering the country with limited means and working their way towards financial stability. For this reason, many people (including both those who want to severely restrict immigration and those who want to increase it) support the idea that immigrants should not immediately rely on government services. Forced migrants (refugees, asylum seekers, etc.) are not included under this policy, so the impacted populations are generally those applying to enter the country to work or join family members.
• Benefitting Americans: a core dispute in immigration policy is how to balance benefits to American citizens and to immigrants. For example, the process to receive a work visa can be onerous and challenging, because there are concerns that immigrants could displace US workers and drive down wages. Some believe that immigration policies should prioritize adding value for current citizens, by supplying a specific, needed skill set or by investing in US firms. Those who want to prioritize benefits to US citizens tend to support the Public Charge Rule, and believe that potential immigrants should receive social services in their home countries, rather than use resources funded by US taxpayers.

Critiques of the Public Charge Rule

One argument in opposition to the Public Charge Rule is its “chilling effects” in reducing immigrants’ use of safety programs and public benefits especially during the Trump administration in 2019. Though the rule did not go into effect until February 2020, many immigrant families avoided programs specified in the rule as well as other public programs before the rule was implemented. For example in 2019, 1 in 4 low-income immigrant adults in California  reported that they avoided public programs like Medicaid or nutrition assistance programs due to the belief that participating in such programs would harm their immigration status or that of a family member. The researchers also found that 37% of the immigrants who reported avoiding public programs in the past year were uninsured, and 54% of those who avoided public programs in the past year were food insecure. 

Reduced participation in nutrition programs such as SNAP could lead to worse health outcomes if families experiencing food insecurity do not use food assistance. According to the 2019 California Health Interview Survey (CHIS), the percentage of immigrants who reported delays in medical care, delays in getting prescription medication, and not receiving needed mental health treatment was twice as high among those who had avoided public programs in the past year as among those who had not. The Public Charge Rule has the potential to influence the health of millions of immigrants and their dependents by decreasing the use of health services and worsening health disparities. Lower rates of insurance coverage would reduce the use of prenatal and postnatal care and cause higher rates of low birth weight, infant mortality, and maternal morbidity. The effect of losses in insurance coverage on morbidity and mortality among both children and adults would also increase the poverty rate among households headed by noncitizen immigrants due to reductions in the use of tax credits and housing energy assistance.  

Many immigrant families, who are not subject to the rule, also avoided medical care for fear of being deemed a public charge despite formal clarification by the United States Citizenship and Immigration Services announcing that COVID-19 testing and treatment are not applicable to the rule. For instance, immigrant-serving organizations reported that 37% of families avoided public programs like the Pandemic EBT, a COVID-19 relief program designed to feed children who were receiving free or reduced priced meals at school. The Public Charge Rule has been critiqued to create misinformation and confusion:

•  23% of adults in immigrant families know that the rule does not apply to citizenship applications.
• 19% of adults knew children’s enrollment in Medicaid will not be considered in their parents’ public charge determinations.

Immigrants are afraid to access COVID-19 treatment even if they fall ill due to public charge concerns. Among undocumented individuals in Massachusetts households, 18% of survey respondents reported fear of being labeled a public charge, and 13% fear that their information would be shared with immigration agents. Thus, many argue that there should be more resources and outreach programs to address the misinformation that the rule has created among immigrant communities.

Moving Forward

Multiple states have started to implement education and outreach programs to clarify any misinformation of the Public Charge Rule. Colorado, Kentucky, and Washington have information available on their website about changes to the Public Charge Rule to reassure individuals that public benefits are safe. Oregon and DC have included public charge FAQs in multiple languages on their websites. Having clear information on the Public Charge Rule available and accessible on states’ websites could ensure that eligible immigrants are receiving necessary public benefits.

As of June 2022, the Supreme Court dismissed Arizona and other states case claiming states have the right to defend the Trump-era public charge rule after the Biden Administration refused to revive the policy. The states argued that the federal government violated the Administrative Procedure Act by dropping the rule without consenting to public hearings. Supporters of the Trump-era public charge rule, such as Arizona Attorney General Mark Brnovich, have vowed to continue to push against the Biden Administration’s decisions regarding the Public Charge Rule. However, the Supreme Court dismissed the case which left the states no legal ability to defend the Trump-era public charge rule.