The American Immigration Council is a non-profit, non-partisan organization. The Trump administration finalized a new rule on July 17 changing the federal government’s policy on how immigration officials determine when someone is likely to be a “public charge.” Federal immigration law says that someone applying for an immigration benefit — such as a green card — can be denied if they are “likely to be a public charge,” but doesn’t further spell out what that means.
What is public charge?
The concept of a “public charge” in U.S. immigration law has been on the books for over a century. An immigration official can deem someone inadmissible — denying them a green card, visa, or admission into the United States — if they are deemed a “public charge,” someone who is likely to utilize government benefits as a major source of subsistence now or in the future. However, the definition of who may be considered a public charge often changes under presidential administrations, as the federal government never issued a regulation defining the term, relying on internal guidance and a century of legal precedent instead.
What does the new USCIS rule change?
The Trump administration’s rule does not set out a whole new policy on how “public charge” is determined. Instead, it undoes a Biden administration policy which aimed to reverse changes made by the first Trump administration, when it gave immigration officials far greater power to deny green cards and visas based on whether someone was “likely at any time” to use benefits — even after becoming a U.S. citizen. The new rule leaves it to U.S. Citizenship and Immigration Services to fill in the details going forward.
What is the recent history of public charge?
The first Trump administration stepped in with a rule that left a lot of discretion to individual immigration officials, but suggested that anyone who had used public benefits (including food stamps and CHIP) — or even anyone who might qualify for those benefits based on their income, whether or not they had actually used them in the past — might qualify as a “public charge” and thus should have their application denied.
That rule only went into effect briefly, but concerns over it led thousands of immigrant families to stop using benefits they qualified for, out of fear that it would harm their ability to stay in the United States. Despite these fears, the original public charge rule did not lead to any denials, but it did significantly increase the paperwork and costs involved in green card applications.
The Biden administration undid the Trump administration’s policy, and issued a new regulation formalizing the traditional standard for public charge as someone who depended on the government for a majority of their income. This is the regulation that has now been undone by the Trump administration.
Public charge is still unclear.
It’s important to stress that the new regulation is not the same as the rule the first Trump administration issued in 2019. Unlike that rule, it does not actually spell out how “public charge” should be defined going forward. Instead, it erases any definition of the term from federal regulations and leaves interpretation to the discretion of USCIS. The agency says it will issue further guidance to officers going forward — though it’s unclear whether they will release all the details of their guidance to the public. However, even that guidance is likely to leave a lot of wiggle room for individual officials to decide who counts as a likely public charge.
What is the impact of this public charge policy?
The biggest impact of the first Trump administration’s public charge policy was to terrify families out of using public benefits they were eligible for, including for their U.S. citizen children, because they were afraid of falling afoul of the rule. Even though the new policy isn’t the same as the old one, the fear of a new public-charge rule could be so powerful that it has the same effect.
It’s very important that people who could be affected by the policy stay informed as further details emerge — especially when making decisions about healthcare, childcare, and education that could affect the health and well-being of themselves and their children.
