NOTE: Recent news outlets have reported that the Department of Justice is contemplating regulations for deporting certain immigrants based on their use of public assistance programs. These regulations have not yet been published, and the below guidance is still current. OAG will update this FAQ as more information emerges.
Federal immigration law allows federal officials to deny green cards and visas if they find that an applicant is likely to become a “public charge” – that is, traditionally someone who is incapable of supporting themselves and who would be dependent on the government for support. On September 22, 2018 the federal government to change the policy that applies when determining whether certain immigrants might be considered a “public charge” for immigration purposes. If this proposal is adopted, it would prevent some immigrants from becoming permanent residents (also known as getting a green card) or getting a visa if they use certain public benefits or the federal government believes they will likely rely on public benefits in the future.
This page contains general information about the proposed changes to the public charge policy, and how District residents can get further information and assistance. The information below is for general educational purposes and is not legal advice. Anyone who believes that they may be affected by this proposal is encouraged to consult an attorney for legal advice. At the end of this FAQ, there is a list of organizations to contact for legal assistance.
What is the “public charge” test? How would this proposal change the “public charge” test?
Federal immigration law allows federal officials to deny green cards and visas if they find that an applicant is likely to become a “public charge.” Under the current policy, a “public charge” is an immigrant who is likely to rely primarily on cash assistance from the government for support, or long-term institutional care at government expense. For example, if more than half of your income comes from Temporary Assistance for Needy Families (TANF), you would be considered a “public charge” under the current policy.
The proposed rule would impose a new multi-factor test to determine if a person is likely to become a “public charge.” The proposed test would redefine a “public charge” as an immigrant who has received or is likely to receive at any time in the future one or more specified public benefits (Medicaid, Medicare Part D low-income subsidies, federal housing assistance, and Supplemental Nutrition Assistance Program (SNAP)). The proposed test also adds specific requirements for income, health, age, and even proficiency in English.
The proposal would significantly expand the number of people at risk of being deemed a “public charge” and therefore ineligible for green cards or visas
It is only a proposal. It is not a final rule.
Right now, this is just a proposal to change the public charge policy that is currently in place. Before it can finalize the proposed rule, the government must review all of the more than 215,000 comments on the proposed rule. This process, along with the possibility that Congress will review the proposal, may delay finalization of the rule. The process could take several months.
The proposal is not retroactive.
It lists certain government programs that, only if you use them after the rule becomes final, could be counted against you in the “public charge” determination.
The proposed rule could count the future use of certain government benefits against you in a “public charge” determination in the future. If you or members of your family are currently using government programs to get medical care or pay for food or rent, you do not need to stop using those programs at this time. These programs help you and your family stay healthy and able to work and school or do whatever else you need to do now. The proposed new rule lists certain programs that, only if a person uses them after the rule goes into effect, will be considered when determining whether the person is likely to become a “public charge.”
The proposed rule would not count all public benefits in the “public charge” test.
If the proposed rule were to be adopted, most public assistance would still not be counted against an immigrant. None of the following public benefits would be used to evaluate whether someone is a “public charge”:
- Emergency Medicaid or emergency medical assistance;
- Use of a school health clinic or publicly funded health clinic;
- Public health assistance for immunizations;
- Short-term, non-cash emergency disaster relief;
- Subsidized health insurance purchased on DC Health Link;
- The Special Supplemental Nutrition Program for Women, Infants, and Children (WIC);
- Head Start or other school or after-school meals programs;
- Public school or education assistance, including student loans;
- Energy assistance;
- Transportation vouchers or non-cash transportation benefits;
- Non-cash Temporary Assistance for Needy Families (TANF) benefits, like child care and education and job training;
- Benefits received by your family members;
- Any non-cash state, local, or tribal benefit programs, or any other public benefit program not specifically listed in the proposed rule;
- Use of Medicaid, Medicare Part D low-income subsidies, federal housing assistance, and SNAP before a final rule goes into effect.
Use of the Children’s Health Insurance Program (CHIP) also would not count against you under the proposal. However, even if the final regulation includes CHIP, use of CHIP before a final rule goes into effect would not be used against you or your children.
Benefits received by family members would not threaten an immigrant’s future immigration status.
Under the proposed rule, the benefits received by family members, including dependent children, will not directly be a factor in a visa or green card applicant’s public charge test. For example, if the proposed rule goes into effect, the government would not count a child’s use of non-cash benefits like Medicaid or SNAP against the child’s parent when the parent applies for a green card. However, if the child’s cash benefits are the parent’s only source of support, that could affect whether the parent would be considered a “public charge.” In addition, if a child or family member is an immigrant, his/her own use of benefits counts toward his/her own public charge determination. Be sure to speak with an immigration attorney about your case.
The changes proposed in this rule do not apply to all immigrants.
Some immigrants are not subject to the “public charge” test. Certain immigrants are either exempt from having to show that they are not likely to become a public charge or can qualify for a public charge “waiver.” These immigrants include refugees, people who are applying for or have been granted asylum (asylees), people applying for a green card under the Violence Against Women Act (VAWA), crime or trafficking victims who have applied or are applying for U or T visas, children seeking Special Immigrant Juvenile status, and people in some other protected categories.
If you are in any of these categories, you can use any government programs you are eligible for—including cash aid, health care, food programs, and other non-cash programs—without worrying that doing so will harm your chances of getting a green card.
The “public charge” test also does not apply to people with green cards when they apply to renew their green cards or when they apply to become U.S. citizens.
Each person’s situation is different.
The U.S. government’s “public charge” policy has already changed for people who are seeking a visa or a green card at consular offices outside of the U.S. In January 2018, the U.S. State Department revised its Foreign Affairs Manual (FAM) to institute new policies on public charge. The FAM provides guidance to government officers at U.S. embassies and consulates who decide whether to grant a person permission to enter the U.S.
If you are seeking a visa to enter the U.S., you may be subject to the public charge test in the FAM, and will have to show why you should not be deemed likely to become a public charge. If you are a U.S. citizen or lawful permanent resident, getting public assistance could be considered if you are sponsoring a family member who is applying for a green card from outside the U.S. or needs to go abroad for a consular interview before being granted permanent resident status.
For more information on this, see the National Immigration Law Center’s publication Changes to “Public Charge” Instructions in the U.S. State Department’s Manual.
Also, if you have a green card, you may be subject to the public charge test when you try to reenter the U.S. if you travel abroad for more than six months. Before you leave the U.S., you should discuss your travel plans with an immigration attorney.
People with questions should consult an immigration attorney about their individual cases. This online directory can help you search for organizations that provide legal help and advice https://www.immigrationadvocates.org/nonprofit/legaldirectory/search?state=DC/
Legal Assistance Organizations
The following organizations assist immigrants in need of legal help and other services in the Washington, D.C. area. This list is non-exhaustive and is provided for guidance purposes only.
Washington, DC and Maryland Office
6925B Willow Street NW, Washington, DC 20012
Phone: (202) 387-4848
2701 Prosperity Ave, Suite 300, Fairfax, VA 22031
Phone: (703) 444-7009
Catholic Charities of the Archdiocese of DC – Immigration Legal Services
Washington, DC Offices
924 G Street NW, Washington, DC 20001
Phone: (202) 772-4352
1618 Monroe Street NW, Washington, DC 20010
Phone: (202) 939-2420
12247 Georgia Ave., Silver Spring, MD 20902
Phone: (301) 942-1790
201 E. Diamond Ave., 3rd Floor, Gaithersburg, MD 20877
Phone: (301) 740-2523
5859 Allentown Way, Temple Hills, MD 20748
Phone: (202) 772-4352 to schedule an appointment.
Catholic Charities of the Diocese of Arlington – Hogar Immigrant Services
6301 Little River Turnpike, Suite 300, Alexandria, VA 22312
Phone: (703) 534-9805
Legal Aid Justice Center
6066 Leesburg Pike, Suite 250, Falls Church, VA 22041
Phone: (703) 778-3450
Northern Virginia Family Services
6400 Arlington Blvd., Suite 110, Falls Church, VA 22042
Phone: (571) 748-2806