Public Charge Rule

Public charge is a “test” used by immigration officials to decide whether a noncitizen will be dependent on the government for support. This determination is made when a person applies to enter the U.S. or to adjust to legal permanent resident (“green card”) status.

Many immigrants are exempt from the public charge “test.” Most immigrants subject to public charge are not eligible for the benefits that are considered in the test. And many important benefits are not considered at all.

The 2019 public charge rule expanded the public benefits programs under consideration and granted immigration officials broad authority to consider various additional factors to decide whether someone is likely to become a public charge. As a result, the new rule was criticized for imposing a “wealth test” on immigrants. This 2019 rule is no longer in effect. This means that most public benefit programs may not be considered in public charge determinations.

The Biden Administration stopped applying the Trump-era public charge rule in March 2021 and returned to the longstanding 1999 public charge policy. Then, the Biden Administration proposed a new public charge rule and requested public comment before publishing that rule on Sept. 8, 2022. This new rule took effect on December 23, 2022. Going through this formal rulemaking process makes it harder for future administrations to radically change the rule.

The public charge rule now in effect also includes several important changes and clarifications about the public charge test that increase protections for immigrant households seeking public benefits. The rule clarifies the many categories of immigrants who are exempt from the public charge test, as well as public benefits exempt from consideration. The rule applies to adjustment of status applications filed on or after December 23, 2022.

Under the public charge rule now in effect, certain immigrants may be considered a public charge only if they are found to be ‘‘primarily dependent on the government for subsistence” as demonstrated by either:

(1) receipt of government cash assistance for income maintenance, or

(2) institutionalization for long-term care at government expense.

The government considers the following as “cash assistance for income maintenance”:  Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) cash assistance, local General Assistance or General Relief cash assistance programs, or other state or local monthly cash assistance programs.  Use of these programs may affect a public charge determination.

No other benefits are considered. Short-term cash assistance for special purposes and emergencies (including pandemic aid) will not be considered. Institutional care for short periods is not considered. Use of health programs like Medicaid and Medi-Cal are not considered unless they are used to cover long-term institutional care.

No. Use of benefits and services by family members, including cash assistance for U.S. citizen children or other household members, will not be considered in an immigrant’s public charge test. Only benefits received by the immigrant who is applying for admission or adjustment to permanent resident status may be considered in the public charge test.

No. Unemployment insurance, disability, family leave and workers’ compensation are all considered earned employment benefits. You only become eligible by working and earning your eligibility. Receiving these benefits cannot be counted against you in a future immigration application.

Tax credits and rebates, such as the California Earned Income Tax Credit (CalEITC), the Youth Child Tax Credit (YCTC), and other stimulus credits and rebates are not considered cash assistance for income maintenance. Taking advantage of these credits will not affect your future immigration applications.

No. Food and nutrition programs such as CalFresh, and public housing assistance such as Section 8, are no longer considered under public charge.

Programs like WIC, CHIP, school lunches, food banks, shelters, child care assistance, student loans and grants, and many other programs are not included in the public charge test.

No. COVID-related health services will not be considered in any future public charge test. This includes COVID testing, vaccination, and medical treatment for persons who have fallen ill from COVID-19.

No. “Public charge” only applies to some persons at certain stages of their immigration process. Persons applying for a visa or seeking admission to the U.S. from abroad, and persons in the U.S. seeking to adjust to lawful permanent resident status (generally through a family-based immigration process) may be subject to a public charge test from an immigration officer. The new rule clarifies many of statuses and groups of immigrants who are not subject to a public charge test, including:

• Asylees and refugees
• U Visa, T Visa and VAWA applicants and beneficiaries (survivors of trafficking, domestic violence and other serious crime)
• Temporary Protected Status (TPS) applicants and beneficiaries
• Persons applying for or renewing DACA
• Special Immigrant Juveniles
• Legal permanent residents*

*There is no public charge test when a legal permanent resident applies for citizenship or renews a green card. Legal permanent residents are only subject to a public charge test when returning to the U.S. after remaining abroad for 180 days or more, or when returning from abroad with certain criminal history.

A complete list of immigrants exempt from the public charge rule is available here.

No. The new public charge rule clarifies that any benefit used while in an exempt category will not be considered, even if you later seek permanent resident status through a pathway where public charge applies.

This information does not constitute legal advice. If you have questions about your particular situation, we recommend that you consult an immigration attorney or federally accredited representative. Visit our page about avoiding Immigration Fraud and Finding the Right Help for information about local free or low-cost legal assistance.  If you have additional questions about the public charge rule and accessing public benefits, please contact our Office of Immigrant Affairs for: 800-593-8222.