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What Is The Public Charge Rule?

Updated on
February 25, 2021
Article written by
Attorney Kevin O'Flaherty

Immigration law requires people coming into the United States to be able to support themselves to avoid being supported by the US Government upon their arrival. This article will discuss:

  1. What is the Public Charge ground of inadmissibility?
  2. I am already a permanent resident. I am receiving benefits. Does the Public Charge apply to me?
  3. I am getting ready to apply for citizenship. Does the public charge apply to me?
  4. My family is receiving public benefits, should I stop them from receiving further benefits because it could affect my case?

In the past, there were only two benefits that counted: long term institutionalization in a hospital or nursing home at government expense and receiving government cash assistance under programs such as the Temporary Assistance for Needy Families (TANF). The Trump administration changed the rules for whom could be denied a visa based on the Public Charge ground of inadmissibility. It also included other government-sponsored benefits and a way to calculate receipt of benefits for an intending immigrant to fit within the rule. 

What is the Public Charge Ground of inadmissibility?

The public charge rule is a ground of inadmissibility. A ground of inadmissibility is a way to reject a visa or green card applications,  preventing the applicant from entering the United States. Under immigration law, an individual seeking admission to the US 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." 8 USC 1182(a)(4). The statute does not define public charge. This means that the “public charge” definition is open to interpretation. The Trump administration used this opening to publish a new public charge rule that changes how consular officers and US Citizenship and Immigration Services (USCIS) define who is likely to be a public charge.

The new rule does not impact all people seeking admission to the United States. There are ways to become a resident that is exempted from the rule. However, most family-based petitions will have to overcome the rule to be able to gain lawful admission. The rule asks adjudicators to determine whether the applicant will use certain public benefits 12 months or more in the next 36-month period. Only benefits received by the individual applying are considered. Benefits received by family members of the applicant are not counted against the person applying for admission. Under this new rule, the benefits that count towards the public charge rule include cash assistance for income maintenance (programs like TANF), Supplemental Security Income (SSI), State and Local cash assistance programs, Federally funded Medicaid, Supplemental Nutrition Assistance Program, and Section 8 housing assistance.

Please note that receiving these benefits does not automatically make an individual likely to become a public charge. There are exceptions and extenuating circumstances. If you have any questions about how the public charge rule could impact your immigration case, we invite you to call O’Flaherty law to schedule a 15-minute appointment.

I am already a permanent resident. I am receiving benefits. Does the Public Charge apply to me?

Generally, no. If you are already a legal permanent resident, you are unlikely to be impacted by the public charge rule. Legal permanent residents are generally not in danger of becoming inadmissible. There is a separate public charge ground of deportability that could impact current residents; however, it is very rarely used. Permanent residents are deportable if they become a public charge within 5 years of their admission to the United States. Public charge in this instance is different from the public charge that is explained above. In this situation, a legal permanent resident may become a public charge if they use public benefits right after admission for ailments that occurred prior to them becoming residents. These residents can mount a defense against this allegation by proving that they became a public charge for reasons that happened after their entry and admission into the United States.

The most likely ways you could be impacted by the rule are: becoming deportable; leaving the country for more than 6 months, and, after the 6 months, seek re-admission into the country; abandoning your status; departing the US while you are in deportation proceedings; or by engaging in illegal activity after leaving the USA.

If you have further questions, we would be glad to help. Please give the law offices of O’Flaherty Law  a call at 630-324-6666 to schedule an appointment to speak with an attorney.

I am getting ready to apply for citizenship. Does the public charge apply to me?

It is unlikely that the public charge may impact your ability to gain citizenship. The public charge that we have described does not apply to citizenship applicants currently. The only public charge rule that was amended was the ground of inadmissibility. Citizenship applicants have already been admitted into the United States, and they are generally not in danger of becoming inadmissible. The most likely way you could be impacted by the rule is by: becoming deportable; leaving the country for more than 6 months, and, after the 6 months, seek re-admission into the country; abandoning your status; departing the US while you are in deportation proceedings; or by engaging in illegal activity after leaving the USA.

If you have further questions or need help with your citizenship application, we would be glad to help. Please give the law offices of O’Flaherty Law  a call at 630-324-6666 to schedule an appointment to speak with an attorney.

My family is receiving public benefits, should I stop them from receiving further benefits because it could affect my case?

Before you decide on whether you should stop your family from receiving benefits, you should speak with an immigration attorney. To be affected by the public charge, a person needs to be personally receiving benefits. Your family may need those benefits to live and maintain their health. Also, there may not be a pathway to status for you right now. This would mean that you are not going to get a public charge determination soon. The rules could change in the future by the time you are eligible for an immigration benefit. Furthermore, there are ways around the receipt of benefits that could make you eligible to become a resident without stopping public benefits for your family members. It all hinges on the specific facts of your case. To give you a fuller and complete answer, we would have to speak with you and learn the specific facts of your case. We would recommend giving us a call to schedule a free 15-minute consultation.

If you have further questions or need help with your immigration application, we would be glad to help. Please give the law offices of O’Flaherty Law a call at 630-324-6666 to schedule an appointment to speak with an attorney.


What Is The Public Charge Rule?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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