Public Charge – What Government Benefits May be Considered under the Final Rule?

In past articles, we had advised that on September 8, 2022, the U.S. Department of Homeland Security (DHS) issued a Final Rule to restore the historical understanding of a “public charge” that had been in place since 1999, then replaced by a Trump-era new policy on September 9, 2019. We advised that the Final Rule will go into effect on December 23, 2022.

We discussed that under the final rule, a public charge is defined as an applicant likely at any time to become, “primarily dependent” on the government for survival through either the receipt of public cash assistance for income maintenance, or long-term institutionalization care at government expense. Finally, we advised that USCIS adjudicators, under the, “totality of the circumstances test” will consider statutory factors, an affidavit of support when required; as well as current and/or past cash assistance for income maintenance or long-term institutionalization at government expense, to evaluate whether a person is likely to become a public charge.

The final rule clarifies the following with respect to government benefits:

– Only received benefits provided by any Federal, State, tribal, territorial or local government entity of the U.S. will be considered. Merely applying for benefits and/or approval of benefits (if not received) will not be considered.

– “Public cash assistance for income maintenance” shall include only the following benefits:

o Supplemental Security Income (SSI);
o Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF);
o Non-federal cash benefit programs for income maintenance; and
o Medical Institutionalization only under Social Security Act.

For additional questions on the New Public Charge Rule or any other immigration matter, contact our attorneys at the Law Offices of Azita M. Mojarad, P.C. Our experienced immigration attorneys can address your concerns and advise you of the proper course of action.