September 25, 2019

Public Charge

Our current administration has issued a regulation that allows them to deny legal residency to a person if they feel they will become a public charge (reliant on government funds to survive). This regulation does not go into effect until October 3, 2019, and it only affects people who are receiving benefits after October 3, 2019. This regulation also does not affect everyone, but if you are obtaining public benefits and trying to get your legal permanent residency or a visa, you should consult an immigration attorney. Here are some general guidelines as to who and is not affected.

What Public Benefits are Included

• Cash Assistance for income maintenance
• SSI
• TANF and SNAP (ex. food stamps)
• Housing Vouchers
• Rental Assistance

What Public Benefits Are Exempt

• Benefits for emergency medical conditions or treatment (Medicaid for emergencies)
• Services provided under the IDEA Act
• School-based services
• Benefits received by those under 21 years old
• Benefits received by a woman while pregnant and 60 days following the birth of the child
• Public Housing Under Section 9 of the US Housing Act of 1937

Who is Affected

• If you are applying for your legal residency through your USC or LPR spouse, parent, or child
• If you are applying through your employer
• If you are consular processing

Who is not Affected

• If you are already a Legal Permanent Resident
• If you are applying for a U visa, T visa, VAWA, or asylum
• If you applying for your legal permanent residency because you were granted a U visa, T visa, VAWA, or asylum

It is important to remember United States Citizen children are entitled to receive benefits if they qualify, and the law does not say that they cannot receive these benefits, it’s about the benefits you as the immigrant receive. The U.S. government will also look at the totality of the circumstances to make the determination regarding if you are likely to become a public charge. Things the government will consider is your ability to speak English, your employment history, the type of employment you have done, your age, your health, your education level, and if you have received public benefits in the past. They will look at whether your children and your spouse with legal status have received benefits, but it does not carry as much weight as if you received them personally. The government will also look at the affidavit of support submitted by your petitioner, and possibly by your co-sponsor as well. The test is the totality of circumstances on whether or not you will become a public charge. For this reason, it is also important to be honest on your taxes and report all income, as the government will look at your income reported on your taxes. If the government determines that you are likely to be a public charge, they could deny your legal residency or your visa or require you to post a public charge bond.

Many people with who are undocumented do not qualify for the majority of these benefits, but if you have questions and you will be applying for your legal permeant residency in the United States in the future, you should consult an immigration attorney about how any public benefits you have received may affect you.