Disclaimer: None of this
information constitutes legal advice. Individuals
who are concerned about whether and how receipt of public benefits might affect their immigration status should ask for
help from an immigration attorney.
February 7, 2020
Background and Overview
Changes to the Federal Public Charge Rule, explained below, will become effective in Oregon on February, 24, 2020. On January 30, 2020, the U.S. Citizenship and Immigration Services (USCIS) announced implementation of the rule change. This announcement followed the U.S. Supreme Court action on January 27, 2020, to set aside the last of three federal injunctions that had blocked the rule changes from taking effect on October 15, 2019 as previously planned.
Changes include, but are not limited to, expanding the kinds of public benefits considered in the public charge test. Under the current rule, the only public benefits considered when determining who is likely to become a “public charge” are cash-assistance programs and Medicaid-funded long-term care.
The new rule expands the list of benefits to include nutrition assistance (Supplemental Nutrition Assistance Programs); housing assistance (public housing and Section 8); and non-emergency Medicaid for non-pregnant adults 21 and older.
Eligibility rules for public benefit programs in Oregon have not changed and many immigrants are exempt from public charge (both under the current and new rule). We realize this federal change may cause concern and confusion for Oregonians who use affected public benefits. We hope that this information clarifies who is affected by public charge and how to get help if needed.
Frequently Asked Questions
“Public charge” or the “public charge test” is used by immigration officials to decide if a person can:
- Enter the United States, or
- Get Lawful Permanent Resident (LPR) status (i.e., a green card).
Immigration officials are supposed to look at a person’s circumstances to determine if they are likely to depend on the government for aid in the future. Use of public benefits is supposed to be only one of several factors used to make this decision.
Officials can deny the applicant entry to the United States or a green card.
Public charge is considered only for people applying to:
- Enter the United States.
- Extend their visa (i.e. they are already in the United States).
- Adjust their status to become a Lawful Permanent Resident (i.e. , a green card holder).
- A green card holder who leaves the United States for more than 180 consecutive days and re-enters.
- U.S. citizens — both those born in the United States and those who have naturalized.
- Immigrants with lawful permanent residency (i.e., green cards) including those applying for U.S. citizenship.
- Immigrants who are in the United States for humanitarian reasons. For example, immigrants with the following statuses are exempt from public charge:
- Asylee (including those in the process of applying).
- Temporary protected status.
- Violence Against Women Act self-petitioners, with some exceptions.
- T or U visa holders, in general.
- Special immigrant juveniles.
- Certain parolees, and several other categories of non-citizens.
- Active military service members and their families.
- Non-emergency Oregon Health Plan (i.e. Medicaid) coverage for non-pregnant adults 21 and older.
- Medicaid-funded long-term care.
- Supplemental Nutrition Assistance Program (SNAP) or food stamps.
- Federal, state and local cash assistance programs. This includes:
- Supplemental Security Income (SSI), and
- Temporary Assistance for Needy Families (TANF)
- Section 8 rental assistance (i.e., housing choice vouchers)
- Project-based Section 8 housing and subsidized housing.
- Oregon Health Plan coverage for youth younger than 21 (i.e. Medicaid and the Children’s Health Insurance Program, or CHIP)
- Oregon Health Plan coverage for people who are pregnant including 60 days after giving birth (i.e. Medicaid, Citizen-Alien Waived Emergent Medical (CAWEM) Plus, etc.)
- Oregon MothersCare (OMC) program
- Emergency Oregon Health Plan coverage for people of all ages (i.e. CAWEM)
- Oregon’s Cover All Kids program
- Early Head Start and Head Start/Oregon Pre-Kindergarten
- Employment Related Day-Care child-care reimbursement
- School-based health services for school-aged children
- Free and reduced School Lunch Program (exception: the new rule would consider this if there was a referral to this program through SNAP)
- Women, Infants, and Children (WIC) supplemental nutrition program
- Commercial health insurance premium subsidies through Oregon’s Health Insurance Marketplace
- Oregon Food Bank programs and services
- Older Americans Act (OAA) programs
- State-funded programs to aid older adults and people with disabilities (e.g., Oregon Project Independence (OPI) program)
- Medicare Part D Low-Income Subsidy (LIS)
- Many other health and social services programs not listed here
Things to Keep in Mind
- Public benefits your children or other family
members get don’t count against you in the Public Charge Test. Most immigrants who are applying for a green card are not eligible for the benefits listed in the rule. And benefits used by eligible family members are not counted unless the family members are also applying for a green card.
immigrant groups are not subject to “public charge.”
Certain immigrants — such as refugees, asylees, many survivors of domestic
violence, and other protected groups — are not subject to “public charge”
inadmissibility determinations and would not be affected by this final rule.
Exempt immigrants include: refugees; asylees; survivors of trafficking,
domestic violence, or other serious crimes (T or U visa applicants/holders);
VAWA self-petitioners; special immigrant juveniles; certain people paroled into
the U.S. as well as other “humanitarian” immigrants. And lawful permanent
residents (Green Card holders) are not subject to the public charge test when
they apply for U.S. citizenship.
The rules specify that any
benefits received while in an exempt status will not be counted against
applicants, if they later seek status through a non-exempt status.
- Immigration officials must
consider all of an immigrant’s circumstances. The public
charge statute — which cannot be changed by regulations — requires immigration
officials to look at all factors that relate to noncitizens’ ability to support
themselves, including their age, health, income, assets, resources,
education/skills, family members they support and family who will support them.
They may also consider whether a sponsor has signed an affidavit of support (a
contract) promising to support the noncitizen. Since the test looks at the
person’s overall circumstances prospectively, no one factor is definitive. Any
negative factor, such as not having a job, can be overcome by positive factors,
such as having completed training for a new profession or having
college-educated children who will help support the family. Thus, use of public
benefits will not automatically make one a public charge, and the applicant can
present the best case for him/herself.