How DHS's New Public Charge Rule Could Affect You

Immigration laws in the US began in the 1880s as people were welcomed into the country for various reasons. Within those laws is the term “public charge,” referring to someone in the care of the public. However, in 1999, the Immigration and Naturalization Service (the agency before the Department of Homeland Security) defined this term more thoroughly. In the 1999 Interim Field Guidance release, the definition of “public charge” was adapted to refer to anyone primarily dependent on public cash assistance or long-term care at the expense of the government. This standard has remained until recent rulings, and the DHS’s new “public charge” rule could affect visa and green card holders.

The Most Recent Public Charge Rule

For decades, the newly coined definition of public charge stood and was consistently used by the Department of Homeland Security (DHS) and the Department of State (DOS). However, the Trump Administration expanded this definition to redefine what “dependency on government benefits” looked like. 

Prior to this revision, those eligible for green cards and visas often qualified as a public charge. But with Trump’s expanded definition, the number of “public charges” on green cards and visas reduced significantly.

In 2019, two versions of this expanded regulation became active. These included the DHS public charge rule that applied to green card applicants in the US and the DOS rule that referred to those applicants outside of the country. However, the recent Biden Administration changes and a court order from 2020 stopped both of these changes, again altering them.

The Biden Administration’s Changes

This new rule was finalized in September 2022. The updated terminology looks a lot like the original 1999 Interim Field Guidance definition. Now, public charges include anyone primarily dependent on the government to survive. It doesn’t matter if they’re receiving cash assistance for their income or in a long-term care institution paid for by the government; they’re considered a public charge.

Cash assistance includes Supplemental Security Income (SSI), “welfare” or Temporary Assistance for Needy Families (TANF), General Assistance from state and local branches, and Medicaid.

The New Form for Green Card Applicants

This doesn't sound like an issue if you're not applying for public assistance, right? Well, it affects you if you're applying for a green card from within the US anytime on or after December 23, 2022.

Form I-944 and DS-5540 aren't necessary if you're applying for permanent residency or a visa. But there's a public charge portion on the new Form I-485 (Application for Adjustment of Status), complete with extra questions. And that form is required for anyone trying to change their status, including those moving from an H-1B visa to a green card.

Changing 2019's public charge rule to the current one was meant to be a positive step for visa applicants. Under the 2019 terminology, any applicant who would be "more likely than not" to use public benefits in the future would be denied a visa. 

But the new (and final) regulations changed this to deny green card applications for prior use of government benefits, such as welfare and long-term institutionalization (subsidized), as well as other public benefits for more than 12 months within 36 months. Benefits used for a spouse or child do not count toward the penalty. The new wording has caused significant confusion for millions of visa and green card holders and applicants.

The new terms also review the likelihood that the applicant will use government benefits in the future. Age, health, family size, financial status, and education/skills are considered. If the applicant has insufficient financial resources, their visa could be blocked since they would be unable to honestly complete the new "Declaration of Self-Sufficiency" form (Form I-944).

What’s Next?

If you're applying for a green card or a visa, this rule pertains to you. Whether you're applying as a temporary visa applicant, sponsored by a US employer, or going through the family relationship avenue, DHS's new public charge rule affects your application.

Importantly, DHS’s new public charge standards expanded to cover a range of temporary visas, like the H-1B. There are some exemptions to the penalties of this rule, though, and you may fall into those categories. At Visa2US, we can help you navigate these changes.

Let us guide you as you apply for a new visa, request a change of status, or ask for an extension. And if you’re facing deportation because of the new laws, we’ll help you handle that concern, too.

As an H-1B visa applicant, chances are you weren’t going to rely on public assistance, anyway. But don’t let the details and terminology impact your career. Contact Visa2US today to ensure you’re following all past and present immigration laws and are kept up-to-date on any possible changes that could arise and affect you and your family in the future.

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H-1B Visa

H-1B Visa

H-1B visa is used by businesses and organizations in the United States to employ foreign nationals with the preferred qualifications, knowledge, and expertise in a role.

I-485 Adjustment of Status

I-485 Adjustment of Status

Submit a form I-485 application to apply for lawful permanent resident status.

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National Interest Waiver (NIW)

An applicant must either hold an advanced degree or have an exceptional ability in their field that would substantially benefit the U.S. to be qualified.