Recently there has been some confusion amongst immigrants who are concerned about the public charge rule. Individuals are wondering if the rule, or some version of it, is still in effect. Indeed, public charge as an institutional policy is still in effect, however the 2019 Trump version that was put in place has since been thrown out by the current Biden Administration.
What this means is that now, the 1999 version of the public charge rule has been reinstated. For those who are curious about the 1999 version of the ruling, we will cover some of the fundamental rules of that policy in this blog post.
Background
In 2019, the public charge rule was changed so that a non-citizen (immigrant) who received one or more public benefits for more than 12 months in a 36-month period was considered to be a public charge from the perspective of the USCIS. In addition, the 2019 ruling also stated that receiving 2 benefits in one month counted as two months of benefits under this test.[1]
However, this version of the public charge ruling has been thrown out. In order to understand the 1999 version, however, immigrants need to access the Department of Justice Federal Register’s 1999 policy PDF, which is available here: https://www.govinfo.gov/content/pkg/FR-1999-05-26/pdf/99-13202.pdf
Key Points from 1999 Reinstatement
If you read through the Registers’ 1999 explanation of the public charge rule, you will notice that in general the definition of public charge is more lenient, and gives more benefit of the doubt toward immigrants who are applying for immigration benefits. In addition, this policy document also frequently mentions that the totality of circumstance test is, and will be used, for applicants who are considered to be a public charge.
Some of the main rules of the 1999 Version of the Public Charge rule include the following:
- The adjudicating officer must consider the applicants age, health status, assets, resources, financial status, and education and skills when making any public charge ruling.
- The adjustment of status (AOS) ruling of having a financial sponsor who is able to maintain an annual income above 125 of the federal poverty level (per household size) is still in effect.
- Applicants who might be considered a public charge during the adjudication period generally will be receiving long term institutionalized care.
- Certain non-cash benefits may not be taken into account when an officer is making a public charge determination. This is probably the single greatest differentiating factor from the 1999 vs. 2019 ruling. These non-cash benefits include Medicaid, SNAP—Supplementary Nutrition Assistance Program, Home energy assistance, childcare, and foster care adoption assistance.
- A past receipt of cash income maintenance benefits does not automatically make an alien inadmissible due to the public charge ruling. Rather, past receipts of benefits obtained by the U.S. government will be weighed in the totality of circumstance test. As noted above, generally past receipts of long term institutionalized care will have more of an effect ones case and ruling.[2]
Overall, it is less likely to become a public charge today because of the fact that certain government programs such as SNAP and Medicaid are longer factored into the ruling. What the U.S. government is looking for is usually receipts of more longer term institutional care, and most immigrants will not have such receipts in their file.
