What is the Public Charge and Its Effect on Immigration?

The concept of a “public charge” in US immigration law dates back to 1882, but it wasn’t formally defined until the Immigration and Naturalization Service—now replaced by the Department of Homeland Security (DHS)—introduced the “1999 Interim Field Guidance.” This guidance defined a “public charge” as an individual primarily dependent on government support for subsistence. This definition still guides DHS and the Department of State (DOS) today.

The evolution of the public charge rule

The public charge rule underwent significant expansion under the Trump administration, altering the eligibility criteria for green cards and other visas. The administration redefined the dependence on government benefits, including predictions of future reliance. The DHS and DOS both issued versions of this rule in 2019, but neither is currently in effect due to the Biden administration’s withdrawal of the 2019 rule in 2021 and subsequent court orders.

In September 2022, the Biden administration finalized its version of the rule, reverting largely to the 1999 standards. This means that dependence on specific government programs like Supplemental Security Income, Temporary Assistance for Needy Families (TANF), and Medicaid for long-term care would contribute to a public charge determination.

The impact on green card and visa applicants

Since December 23, 2022, green card applicants in the US must use the updated Form I-485, which includes additional questions related to the determination of public charges. It’s vital to remember that applicants aren’t required to submit Forms I-944 or DS-5540 during this process.

Changes brought by the 2019 DHS public charge rule

The 2019 DHS rule expanded the public charge definition, focusing on the likelihood of future government benefits use. It introduced new criteria for green card denials, including past use of a wider range of government benefits and the likelihood of future benefits use based on factors like age, health, family size, skills, and financial status. The introduction of the “Declaration of Self-Sufficiency” (Form I-944) was a notable change, setting stringent financial requirements for applicants. This form required detailed financial information, creating a more comprehensive assessment of an applicant’s financial independence and reducing reliance on the Affidavit of Support.  

Who was affected by the 2019 policy change?

This policy change impacted the majority of green card applicants, including those sponsored by family or US employers, as well as applicants for many temporary visas like the H-1B visa. The rule also stipulated that these applicants demonstrate they had not used certain public benefits for more than 12 months in any 36-month period. The extensive reach of this rule meant that even short-term use of benefits could jeopardize an applicant’s immigration status, significantly altering the landscape for future and current visa holders.

Exemptions and special cases

It’s important to note that the public charge rule did not apply to individuals exempted by Congress, such as refugees, asylees, and certain other special categories. This is where the expertise of a corporate immigration attorney can be invaluable. These exemptions highlight the complex nature of immigration law, where different rules apply to different categories of immigrants, necessitating specialized legal advice to navigate these nuances effectively.

Permanent residents and US citizenship

The changes in the public charge definition could have expanded DHS’s ability to deport some green card holders under specific conditions. However, due to legal constraints and practicality, few green card holders have been deported on public charge grounds. This potential expansion created uncertainty for many immigrants.

Visa applicants from abroad

DHS’s public charge rule primarily addressed applications filed within the United States. However, the State Department also expanded its definition for visa denials on public charge grounds, impacting applicants filing through embassies or consulates.

Sponsors of green card applicants

A 2019 White House memorandum directed stricter actions against US citizens and permanent residents whose sponsored family members receive public benefits. This increased the responsibility of sponsors to sign the “affidavit of support.”

How Berd & Klauss, PLLC can assist

As experienced corporate immigration attorneys in New York, Berd & Klauss, PLLC offers expert guidance in navigating complex immigration matters. Our lawyers’ in-depth knowledge of immigration law makes us a preferred choice for individuals and corporations alike. We specialize in areas including immigrant and non-immigrant visas, corporate immigration, and more.

For individuals or businesses needing corporate immigration attorneys, Berd & Klauss, PLLC in New York City is equipped to handle a wide range of immigration-related issues. Our commitment to our clients ensures thorough answers to all immigration queries.

Seeking expert guidance?

If you’re seeking corporate immigration attorneys, contact Berd & Klauss, PLLC, at 212-461-7152. From immigrant visas to deportation defense and naturalization, our team is dedicated to addressing your immigration needs. Contact us to learn more about our services and how we can assist you.