Public Charge – What Government Benefits are Not Considered under the Final Rule?

In past articles, we 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, later 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 also 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 that the following government benefits are not considered under the Final Rule:

–  Short periods of institutionalization for rehabilitation purposes or imprisonment for conviction of a crime;
– Home and Community-Based Services (HCBS) under Medicaid;
–  Receipt of Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs;
–  Children’s Health Insurance Program (CHIP)
–  Medicaid (other than for long term use of institutional services under Social Security Act;
–  Housing benefits;
–  Benefits related to immunizations or testing for communicable diseases;
–  Other supplemental or special-purpose benefits;
–  Lawfully received benefits available to refugees by non-refugees (i.e., victims of trafficking and violence)
–  Benefits to household members, which would be disqualifying if received by the applicant, even if the applicant applied for those benefits on that person’s behalf (i.e., a child).

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.