Experts say the rule expands the benefits immigration officials can consider and gives them greater discretion to determine whether an applicant could face a ‘public charge.’
Immigrants enrolled in SNAP, Medicaid, financial aid or other safety net programs may have a harder time getting a green card under the new federal public charge rule.
The rule, which went into effect Sept. 18, allows immigration officers to consider if an applicant’s use of public benefits is a “public charge” — someone likely to rely on the government to support themselves. And that could count as grounds for a denial.
The change comes as immigrant families face mounting fear, anxiety and strain from continued immigration enforcement and benefits cuts from the Trump administration. Immigrants and families with mixed immigration statuses are worried and reconsidering participating in programs they would qualify for, immigrant rights advocates say.
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“If a U.S. citizen child uses the CHIP [Children’s Health Insurance Program] program or Head Start that may now be an indication that a green card applicant is of low-income, and therefore it can then trigger a public charge of determination,” said Adriana Cadena, executive director of the national Protecting Immigrant Families Coalition, where more than 800 groups are working to expand families’ access to housing, work, education and other resources.
That means families are having to choose between applying for a green card or meeting their basic needs, advocates and healthcare providers say.
Some patients at Esperanza Health Centers in Chicago have had to make tough calls, said María Márquez, who leads the federally qualified health center on the city’s southwest side.
“We have a pregnant patient who delayed care until the third trimester because of fear of what public charge can do to (their) status or (their) partner,” said Márquez, who joined Cadena and the Illinois Coalition for Immigrant and Refugee Rights online in late September to speak on the federal rule. “We have patients who qualify for benefits forgoing benefits because of fear of impact due to public charge rules – and these things are only getting worse.”
Borderless Magazine breaks down what this means, who is impacted and what immigrants can do now that this rule change is in effect.
What is ‘public charge’?
The public charge rule is not new.
Immigration officers use it to decide whether the applicant seeking legal permanent residency would be deemed likely to depend on the government for assistance, the U.S. Customs and Immigration Services (USCIS) said. Officers also consider an applicant’s age, health, family, finances, education and affidavit of support among other things.
In 2022, the Biden administration narrowed the rule to those using cash assistance programs such as Temporary Assistance for Needy Families (TANF). It also considered those who may need federal aid for long-term institutionalized care from nursing homes or mental health facilities.
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The Department of Homeland Security has since rescinded that rule, which now allows officers to consider “in totality” an applicants’ use of “any and all benefits” and “make case-by-case decisions,” USCIS said.
That means immigration officers could have more discretion, Cadena said.
Which green card applicants are affected by the rule change?
Not all immigrants applying for green cards are impacted by the rule change, Cadena said.
Public charge applies to immigrants applying for green cards through family-based petitions or people with green cards who leave the country for more than six months.
That includes:
- spouses, children, siblings and parents of U.S. citizens,
- fiances or widows of U.S. citizens,
- spouses, children and unmarried sons and daughters of legal permanent residents,
- religious workers,
- skilled and priority workers
- and professionals with advanced degrees.
The full list is available on the USCIS website.
Which applicants are exempt?
There are many people exempt from the public charge rule, said Cadena and Emma Melton, managing attorney at The Resurrection Project.
Asylees, refugees and survivors of human trafficking applying for a T nonimmigrant status are among the many, according to USCIS. Those with Special Immigrant Juvenile Status and who filed petitions under the Violence Against Women Act are also listed.
What benefits are considered in public charge?
Programs funded by the government or based on income are more likely to be considered in a public charge test. “Means-tested” benefits such as SNAP, TANF, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) or the Housing Choice Voucher Program provide aid to people earning incomes that fall below a certain amount.
“That’s why college tuition assistance can be used,” Melton told Borderless. “FAFSA [The Free Application for Federal Student Aid] requires you to give your financial history. It’s used as a deciding factor in whether they should give you that tuition assistance.”
What benefits are excluded?
That list is much smaller, Melton said. Social Security benefits, including disability insurance, are excluded.
What is a public charge bond?
USCIS may ask applicants to post a public charge bond before approving their adjustment of status. The bond – a cash bond or surety bond – is a “financial guarantee” that assures the person will not depend on certain government benefits in the future, USCIS said.
The bond’s amount is based on how much the applicant may receive in government assistance over the next five years.
What should I do?
Stay informed, said Edith Avila Hesser, health justice and policy director at ICIRR.
Individuals can also call the coalition’s hotline at 1-855-435-7693 for guidance on the new public charge rule. For additional support, Hesser and Melton say, contact community groups on the rule change or consulting with immigration attorneys.
“Before starting or stopping any benefits purely out of fear of immigration consequences, folks should talk to attorneys that specialize in immigration law just to make sure they’re not missing anything,” Melton said.
Borderless Magazine has compiled a list of free immigration lawyers in Chicago. There are two pro bono legal service providers in Illinois, according to the Department of Justice.
“To directly impacted individuals, we remind them to stay calm and verify the facts,” Hesser said on the call. “The public charge rule does not impact all immigrants.”
F. Amanda Tugade is a reporter at Borderless Magazine. Email her at [email protected].
