When applying for an immigrant or non-immigrant visa, immigration will evaluate an applicant’s potential for becoming a ‘public charge.’ Under the Immigration and Nationality Act, a person may be denied a visa or lawful permanent residency if s/he is “likely at any time to become a public charge.” A public charge has come to mean someone who was or is likely to become “primarily dependent” on cash assistance, or institutionalized for long-term care at the government’s expense. The Immigration and Nationality Act provides for the evaluation of the applicant’s age, health, family status, assets, resources, financial status, and education level, in making the public charge determination. Currently, the use of publicly funded healthcare and housing programs are not considered in the public charge determination.

For immigrant visas (green cards), immigration mitigates the ‘risk’ that an applicant may become a public charge by requiring that the Petitioner file form I-864. An I-864 is a ‘contract’ of sorts, between the Petitioner and the government in which the Petitioner gives assurances that s/he will be financially responsible for the Beneficiary until the Beneficiary can be self-sufficient.

In the case of a non-immigrant visa a consulate can require that the applicant submit form I-134, Affidavit of Support, to demonstrate that there is someone in the United States who can assist the applicant, should they need financial assistance?

Despite the availability and use of forms I-864 and I-134, under the Trump administration, denials of visas and green cards based on the “public charge” ground of inadmissibility, have sky-rocketed. In fiscal year 2016 1,033 applications were denied based on the public charge ground, 3,209 were denied in fiscal year 2017, and 12,973 in fiscal year 2018.

In January 2018 the Foreign Affairs Manual, relating to public charges, was revised to give less weight to Affidavits of Support. In the past, the existence of an executed I-864 or I-134 was sufficient to override most potential public charge determinations; however, that is no longer the case.

On August 14, 2019, the Department of Homeland Security published a final rule relating to the public charge ground of inadmissibility. Barring any changes, the final rule will take effect 60 days after its publication, on October 15, 2019. Court challenges may delay implementation of the rule. The new rule will not apply to adjustment of status applications that are pending or post-marked before October 15th.

The new rule defines a public charge as a person who has received an enumerated public benefit for more than an aggregate of 12 months in any 36 month period. The new rule expands the list of programs that immigration officers may consider in making a public charge determination. Receipt of benefits from two listed programs would count as two months (even if the benefits were received in the same month). Under the new rule use of non-emergency Medicaid, food stamps, Section 8 housing, and federally subsidized housing will be considered in the public charge evaluation.

Review of prior benefits received is only one part of the evaluation; immigration officers are also looking prospectively to determine whether they believe the applicant is likely to need more than 12 months of public benefits in a 36 month period. The rule creates new ‘heavily weighted’ positive and negative factors, one of which includes English language ability.

Certain applicants, including refugees, asylees, applicants for the Cuban Adjustment Act, applicants of NACARA, those applying for T and U visas, and VAWA self-petitioners, to name a few, are exempt from the public charge ground of inadmissibility.

If you are applying for an immigrant or non-immigrant visa and are worried about a public charge determination, please contact an immigration attorney who is trustworthy and knowledgeable! Our attorneys at Landerholm Immigration, APC, are experienced in immigrant and non-immigrant visa cases. Please feel free to call us at 510-488-1020 to see how we can help!