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Public Charge

By August 17, 2020September 21st, 2020No Comments

SNAP & Immigrants: Get the Facts About Public Charge

Changes to the “Public Charge” rule go into effect on February 24, 2020.

The United States Citizenship and Immigration Services (USCIS) announced on January 30, 2020 that the agency will begin to apply the final rule to applications and petitions submitted on or after February 24, 2020. Use of public programs covered by the new rule prior to February 24, 2020 will not be considered in any public charge determination. 

New Yorkers who have questions about the new rule should contact the Office for New Americans hotline at 1-800-566-7636 to receive more information.

Public Charge Client Flyers

What is Public Charge?

“Public charge” or the “public charge test” is used by immigrations officials to decide whether a person can enter the U.S. or is eligible to receive a Green Card (lawful permanent residence or “LPR” status). When a noncitizen applies for LPR status or for a visa, they are subjected to an assessment of their life circumstances to determine if they are likely to become a public charge in the future.

Community organizations can use the flyers below when working with immigrants who are using SNAP to ensure that they don’t disenroll without getting the facts. People with questions about this rule and its impact on their family should consult an immigration advocate or attorney. The public charge changes do not apply to everyone. See our flyers (top of page) with hotline numbers for more information.

Changes to Public Charge

The administration’s new rule redefines what being a “public charge” means in both economic terms and program-receipt terms. The rule now counts wealth and income as the primary markers of a person’s future contribution, fundamentally changing who can stay in the country. Negative factors are assigned if an applicant has bad credit, assets and resources below 125 percent of the federal poverty guideline, or has received immigration fee waivers. The rule also assigns negative weight to many factors that have never before been relevant in a public charge determination, including being a child, a senior, or not speaking English.

Who is NOT affected by changes to Public Charge?

Many immigrant groups will not be affected by these changes, including those who are:

  • filing adjustments or a change/extension of status application prior to February 24, 2020,
  • granted or applying for status under the Violence Against Women Act,
  • granted other humanitarian relief,
  • green card holders seeking to become citizens or renew their green card,
  • refugees and asylees,
  • Special Immigrant Juveniles (SIJ),
  • T Visa holders (trafficking survivors),
  • TPS and others in a protected status,
  • U Visa applicants or holders (for certain crime victims), and
  • U.S. Citizens.

Benefits that can be considered in the new Public Charge Test

The final rule also expands the list of programs that can be considered for a public charge determination. The Supplemental Nutrition Assistance Program (SNAP), Medicaid (for people over the age of 21 who are not pregnant), and federal housing assistance will be added to the list of programs that are counted for public charge considerations once the rule goes into effect.

The public charge decision is based on several different factors. Called the “totality of circumstances” test, an immigration officer looks at the applicant’s age, health, family status, financial status, education and skills, and their affidavit of support (if they have one). The government must look at the person’s whole situation to decide if they are likely to depend on public programs in the future.

Receipt of public benefits received by other members of the household, including U.S. citizen children do not count against a person in a public charge determination. The use of SNAP (food stamps), public housing, or section 8 housing vouchers, and Medicaid only count toward a public charge determination if they are received after the new rule is put into law.

Benefits that will not be considered in the new Public Charge Test

  • Children’s Health Insurance Plan (CHIP),
  • Disaster relief
  • Head start
  • Emergency Food Program assistance through food pantries, soup kitchens or homeless shelters
  • Emergency medical assistance,
  • Energy Assistance (including; HEAP and weatherization projects)
  • School meals and other food assistance programs for children including the Summer Food Service Program (SFSP) and CACFP afterschool snacks and dinners
  • Student and mortgage loans
  • Women, Infants and Children (WIC) Program benefits

Key points to remember

People who think they may be affected should speak to an immigration advocate or attorney before disenrolling in public benefit programs.

Many immigrant groups will NOT be affected by these changes.

People who already have a green card will not be affected unless they leave the U.S. for over 180 days and seek to re-enter.

U.S. citizen children can receive benefits with no risk to a parent’s immigration status or the immigration status of anyone else in the home.

Many programs are not included in the public charge test.

The public charge test is forward-looking and cannot be based on what may have happened in the past.

Use of public benefits will not automatically make a person a public charge. Immigration officials must look at the applicant’s age, health, family status, financial status, education and skills, and their affidavit of support (if they have one). The government must look at the person’s whole situation to decide if they are likely to depend on public programs in the future. Additionally, most immigrants who are subject to public charge are not eligible for the programs listed in the rule.

Background

On August 14, the administration published a final rule in the Federal Register defining when an immigrant becomes a “public charge”—a rule that will fuel hunger and poverty in the U.S., and will force families, including those with U.S. citizen children, to make impossible choices between food and family.

The proposed rule received more than 266,000 comments during the public comment period, the vast majority of them opposed to the rule.

Changes to the “Public Charge” rule were scheduled to take effect on October 15, 2019. However, on October 11, several federal courts issued preliminary injunctions that stopped the rule from going into effect nationwide.

On January 27, 2020 the Supreme Court of the United States (SCOTUS) ruled 5-4 to lift the nationwide injunction that was in place, allowing the administration to enact the changes to the public charge rule. Read the New York Times article on the court ruling.

The fight against the DHS public charge rule continues. Appellate cases challenging the viability of the DHS final rule are moving on expedited schedules and could be decided within a couple of months. Likewise, the district court cases will continue towards final resolution of the rule’s legality.