Basics About the Proposed Public Charge Rule

Of interest to us as Miami immigration lawyers and Austin immigration lawyers is the proposed Public Charge Rule by USCIS. This proposed Public Charge Rule may affect your eligibility to adjust status as an immigrant. Below are some frequently asked questions:

What is the proposed public charge rule?
For purposes of determining inadmissibility, “public charge” means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense. If you have any questions in regard to this, please contact your Miami immigration lawyer or Austin immigration lawyer.

How does one determine who becomes a public charge?
A number of factors are considered when making a determination that a person is likely to become a public charge.

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (Green Card) is inadmissible if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Public charge does not apply in naturalization proceedings. If an individual is inadmissible, admission to the United States or adjustment of status is not granted. If you have any questions in regard to this, please contact your Miami immigration lawyer or Austin immigration lawyer.

What kinds of publicly funded benefits are considered for public charge purposes?
Cash assistance for income maintenance and institutionalization for long-term care at government expense may be considered for public charge purposes.

Public benefits that are received by one member of a family are also not attributed to other family members for public charge purposes unless the cash benefits amount to the sole support of the family.

Acceptance of the following types of assistance may lead to the determination that the individual is likely to become a public charge:

Supplemental Security Income (SSI) under Title XVI of Social Security Act

  • Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program) (Note: Non cash benefits under TANF such as subsidized child care or transit subsidies cannot be considered and non-recurrent cash payments for crisis situations cannot be considered for evidence of public charge)
  • State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs)
  • Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution). (Note: costs of incarceration for prison are not considered for public charge determinations)

Please note – this not an exhaustive list of the types of cash benefits that could lead to a determination that a person is likely to become primarily dependent on the government for subsistence, and thus, a public charge. If you have any questions in regard to this, please contact your Miami immigration lawyer or Austin immigration lawyer.

What kinds of benefits do not fall under the public charge category?
Generally, non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination. Non-cash or special purpose cash benefits that are not considered for public charge purposes include, but may not be limited to:

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care
  • Children’s Health Insurance Program (CHIP)
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
  • Housing benefits
  • Child care services
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
  • Job training programs
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter

Again, if you have any questions in regard to this, you should immediately contact your Miami immigration attorney or Austin immigration attorney.

Does public charge apply to me?
In short: it depends. There are certain groups of people who are either exempt from public charge, or may get a waiver for public charge when applying for a Green Card or other benefits with USCIS. These include:

  1. Refugees
  2. Asylum applicants
  3. Refugees and asylees applying for adjustment to permanent resident status
  4. Amerasian Immigrants (for their initial admission)
  5. Individuals granted relief under the Cuban Adjustment Act (CAA)
  6. Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA)
  7. Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA)
  8. Individuals applying for a T Visa
  9. Individuals applying for a U Visa
  10. Individuals who possess a T visa and are trying to become a permanent resident (get a Green Card)
  11. Individuals who possess a U visa and are trying to become a permanent resident (get a Green Card)
  12. Applicants for Temporary Protected Status (TPS)
  13. Certain applicants under the LIFE Act Provisions

Please note that you are encouraged to contact your Miami immigration lawyer or Austin immigration lawyer with any questions or concerns.

If you would like more information on the Public Charge Rule, obtaining a green card, or obtaining U.S. citizenship, please contact Miami immigration lawyer and Austin immigration lawyer Michael G. Murray, Esq. at (305) 895-2500 or visit Murray & Silva, P.A.’s website at www.mmurraylaw.com.