A. The final rule was initially scheduled to go into effect on Oct. 15, 2019. However, due to delays resulting from ongoing litigation, we implemented the final rule on Feb. 24, 2020 nationwide, including in Illinois where the rule was most recently enjoined by a federal court.  

We will apply the final rule only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after Feb. 24, 2020. We will adjudicate (approve or deny) applications for adjustment of status postmarked (or, if applicable, submitted electronically) before Feb. 24, 2020,  under the prior policy, the 1999 Interim Field Guidance. Applications and petitions for extension of stay and change of status postmarked (or, if applicable, submitted electronically) before Feb. 24, 2020, will not be subject to the final rule.  

In addition, regardless of whether the application or petition was filed before, on, or after the effective date, DHS will not consider receipt of public benefits excluded from consideration under the 1999 Interim Field Guidance (for example, Supplemental Nutrition Assistance Program and Medicaid) unless such benefits are received on or after  Feb. 24, 2020. Aliens applying for adjustment of status do not need to report the receipt, certification or approval to receive, or receipt of previously excluded public benefits before Feb. 24, 2020. 

For public benefits that were considered under the 1999 Interim Field Guidance (for example, Supplemental Security Income, General Assistance or Temporary Assistance for Needy Families or institutionalization for long-term care at government expense), DHS will consider the receipt of those benefits before Feb. 24, 2020, as a negative factor in the totality of the applicant’s circumstances but will not consider such receipt a heavily weighted negative factor, regardless of the duration of past receipt.  

Those applying for or petitioning for an extension of nonimmigrant stay or change of nonimmigrant status do not need to report an alien’s receipt of public benefits before Feb. 24, 2020.

A. The final rule changes the definitions for public charge and public benefits. It also changes the standard that DHS uses when determining whether an alien is likely to become a “public charge” at any time in the future and is therefore inadmissible and ineligible for admission or adjustment of status.  

In limited circumstances, and only at the request of USCIS, an alien may post a public charge bond and obtain adjustment of status, despite being determined inadmissible on the public charge ground. The final rule sets the minimum bond amount at $8,100 annually adjusted for inflation based on the Consumer Price Index for Urban Consumers; the actual bond amount would be dependent on the alien’s circumstances. In addition, in certain circumstances, an alien may obtain a waiver of the public charge ground of inadmissibility.  

The rule also makes nonimmigrants who have received—since obtaining the nonimmigrant status they are seeking to extend or from which they are seeking to change—public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period generally ineligible for extension of stay and change of status. 

A. Unless specifically exempted by Congress (such as refugees, asylees, certain self-petitioners under the federal Violence Against Women Act, and certain T and U nonimmigrant visa applicants), aliens subject to the public charge ground of inadmissibility are those seeking: 

• Immigrant or nonimmigrant visas abroad;  

• Admission to the United States on immigrant or nonimmigrant visas; and 

• Adjustment of their status to that of a lawful permanent resident from within the United States.  

Most lawful permanent residents are not subject to inadmissibility determinations, including public charge inadmissibility, upon their return from a trip abroad. But some lawful permanent residents can be subject to the public charge ground of inadmissibility because specific circumstances dictate that they be considered applicants for admission. 

A. Congress has exempted certain classes of immigrants from the public charge ground of inadmissibility, such as, refugees, asylees, petitioners under the federal Violence Against Women Act, certain T and U visa applicants, and Afghans and Iraqis with special immigrant visas. This rule includes provisions clarifying the classes of individuals who are exempt from this rule, as well as those who are able to obtain a waiver of public charge inadmissibility. 

A. DHS will only consider public benefits as listed in the rule:    

• Any federal, state, local or tribal cash assistance for income maintenance    

  • Supplemental Security Income 

  • Temporary Assistance for Needy Families 

  • Federal, State, local, or tribal cash benefit programs for income maintenance (often called General Assistance in the state context, but which may exist under other names)   

• Supplemental Nutrition Assistance Program (formerly called Food Stamps)  

• Section 8 Housing Assistance under the Housing Choice Voucher Program  

• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)   

• Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.  

• Most forms of federally funded Medicaid (with certain exclusions)  

This rule also clarifies that DHS will not consider the receipt of designated public benefits by an alien who, at the time of receipt, or at the time of filing or adjudication of the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces. DHS also will not consider the receipt of public benefits by the spouse and children of such service members.  

The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under section 320 of the INA, 8 U.S.C. 1431 or section 322 of the INA, 8 U.S.C. 1433.  

DHS also will not consider:   

• The receipt of Medicaid for the treatment of an emergency medical condition;   

• Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;   

• School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law;   

• Medicaid benefits received by an alien under 21 years of age; or   

• Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.  

The final rule also clarifies that DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or under power of attorney for such a person. DHS will also not attribute receipt of a public benefit by one or more members of the applicant’s household to the applicant, unless the applicant is also a listed beneficiary of the public benefit.  

DHS will not consider the application for, certification or approval to receive, or receipt of certain previously excluded non-cash public before Feb. 24, 2020, and will not weigh heavily the receipt of previously included public benefits (such as cash assistance for income maintenance and long-term institutionalization) if received before Feb. 24, 2020. 

A. The final rule includes a single duration-based threshold for the receipt of public benefits as part of the definition of public charge. The final rule considers an alien a public charge if the alien receives public benefits for more than 12 months, in total, within any 36-month period, such that the receipt of two benefits in one month counts as two months.  

In considering how much weight to give to the receipt of public benefits that is 12 months or less, in total, within any 36-month period, an officer may consider the dollar amount of public benefit received, where applicable, and how long the alien had received the public benefit. However, no amount, where applicable, or duration will decide the outcome of a public charge inadmissibility determination, as this is a totality of the circumstances review based on all positive and negative factors in an applicant’s case. 

We will also consider whether an alien seeking an extension of stay or change of status has received, since obtaining the nonimmigrant status he or she seeks to extend or from which the alien seeks to change, public benefits for more than 12 months, in total, within any 36-month period, such that, for instance, the receipt of two benefits in one month counts as two months. 

A. Under the rule, DHS will only consider the direct receipt of benefits by an alien for the alien’s own benefit, or where the alien is a listed beneficiary of a public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person. DHS will also not attribute receipt of a public benefit by one or more members of the alien’s household to the applicant unless the applicant is also a listed beneficiary of the public benefit. Similarly, any income derived from such benefits received by other household members will not be considered as part of the applicant’s household income. 

A. The list of public benefits in the rule is exhaustive with respect to non-cash benefits. However, cash benefits for income maintenance may include a variety of general purpose means-tested cash benefits provided by federal, state, local or tribal benefit granting agencies. Any non-cash benefits not listed in the rule are excluded from consideration.  

The rule does not include consideration of emergency medical assistance, disaster relief, national school lunch programs, foster care and adoption, student and mortgage loans, energy assistance, food pantries and homeless shelters and Head Start.  

In addition, DHS will not consider, as part of a public charge inadmissibility determination, or as part of applications and petitions for extension of stay and change of status, public benefits received by members of the U.S. armed forces serving in active duty or in any of the Ready Reserve components, and by the service member’s spouse and the service member’s children.  

Similarly, DHS will not consider:   

• The receipt of Medicaid for the treatment of an emergency medical condition;   

• Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;   

• School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law;   

• Medicaid benefits received by an alien under 21 years of age; or  

• Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.

A. Under the final rule, “likely at any time to become a public charge” means more likely than not at any time in the future to become a public charge (in other words, more likely than not at any time in the future to receive one or more of the designated public benefits for more than 12 months, in total, within any 36-month period, such that, for instance, receipt of two benefits in one month counts as two months).  

Under this final rule, inadmissibility based on the public charge ground is determined by looking at the factors set forth in 8 CFR 212.22 and making a determination of the applicant’s likelihood of becoming a public charge at any time in the future based on the totality of the circumstances. This means that the adjudicating officer must weigh both the positive and negative factors when determining whether someone is more likely than not at any time in the future to become a public charge.  

When determining whether an applicant is inadmissible on the public charge grounds, a USCIS officer must consider these factors about the applicant (as required by section 212(a)(4) of the INA and this final rule):  

• Age;  

• Health;  

• Family status;  

• Assets, resources and financial status;  

• Education and skills;  

• Prospective immigration status;  

• Expected period of admission; and   

• The sufficiency of the Form I-864 or Form I-864EZ (when required under section 212(a)(4)(C) or (D) of the INA). 

A. The following factors will generally weigh heavily in favor of a finding that an alien is likely at any time to become a public charge:  

• The alien is not a full-time student and is authorized to work but cannot show current employment, recent employment history or a reasonable prospect of future employment.  

• The alien has received, or has been certified or approved to receive, one or more public benefits for more than 12 months, in total, within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Feb. 24, 2020.  

• The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition.  

• The alien has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds. 

A. The following factors would weigh heavily against a finding that an alien is likely to become a public charge:  

• The alien has household income, assets, or resources and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for the alien’s household size.  

• The alien is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of the alien’s household size.  

• The alien has private health insurance appropriate for the expected period of admission, so long as the alien does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance. 

A. For more information on public charge, see:  

• USCIS policy on public charge refer to the USCIS Policy Manual;  

• USCIS Public Charge Fact Sheet; and 

• Inadmissibility on Public Charge Grounds final rule and correction.