When Did Public Charge Come to Be?

“Public charge” is a term used to refer to a ground of inadmissibility. Grounds of inadmissibility are reasons that a person could be denied permanent residence, a visa, or entry into the United States. In deciding whether to grant a benefit, an immigration officer must decide whether that person is likely to become a public charge.

After the enactment of the Immigration and Nationality Act (INA) in 1952 and until 1999, there was no formal guidance in place permitting immigration officers to exercise discretion in determining whether someone was subject to a public charge inadmissibility ground. Instead, whether an applicant was subject to the public charge ground of inadmissibility was decided on a case-by-case basis.

It wasn’t until 1999 that the former Immigration and Naturalization Service (INS) issued guidance in determining whether someone should be determined to be a “public charge.” That guidance narrowly focused on cash assistance and long-term institutionalization at government expense and was in place until 2019. That year, the administration issued new guidance that for the first time defined “public charge” and implemented a detailed framework and expanded factors for determining who might become a public charge. The rule went into effect only briefly because several federal courts enjoined the rule.

In 2021, the 2019 rule was removed by the new administration which created a new rule in 2022, which narrowed the guidance and made it less likely someone would be found to be a public charge. The current administration has proposed more changes to the “public charge” rule although nothing has been finalized to date.

Where the DHS is heading with regard to Public Charge…

Ultimately, it seems that the Department of Homeland Security’s (DHS) objective is to broaden the factors immigration officers should consider when determining whether someone is likely to become a public charge. DHS believes the current rule prevents officers from making accurate, individualized determinations and instead proposes officers should be considering any and all relevant evidence related to the self-sufficiency of a foreign citizen. Thus, we can expect further guidance from DHS which expands the discretion officers can use and the evidence they can consider in their determinations.

Which Benefits Generally are not Considered for Purposes of Public Charge?

The benefits which are not considered in the determination of whether someone is subject to a public charge include non-cash benefits such as food assistance (commonly known as SNAP), WIC, Medicaid (except long-term care), housing assistance, and education/childcare.

 Who is NOT Subject to Public Charge Ground of Inadmissibility?

Worth noting are those immigrants who are not subject to the public charge ground of inadmissibility including: refugees, asylees, special immigrant juveniles, U Non-Immigrant Status (U Visa) and T Non-Immigrant Status (T Visa) holders, and Violence Against Women Act (VAWA) self-petitioners.