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Immigrants in the U.S. and Public Benefits: Understanding Public Charge

Updated January 31, 2020

Lawsuits are ongoing. Please check back for updates!

Many immigrants living in the United States are hesitant to use public benefits because they fear it will affect their immigration status. A lot of that fear comes from a rule known as public charge.

Neighborhood Legal Services of LA County is working to ensure the community is well informed about public charge so that families access the public benefits they need to stay healthy. We know that you may be worried — but the more we know about our rights, the stronger and healthier we are. Use this time to educate yourself about what this rule is, and how it may affect your community.

Below you will find detailed explanations to some of the most common questions about the Public Charge test. Some important things we want everyone to remember about this test:

  • Very few immigrants will actually be affected by the changes!
  • Use of public benefits will not automatically make you a public charge.
  • Many public benefit programs are not included in the public charge test.
  • Benefits used by family members will not count in public charge decisions made in the U.S.

 

Background

On August 14, 2019, the U.S. government proposed to change the Public Charge test that it applies to certain immigration applications. The proposed changes, which confused and alarmed many immigrants, were supposed to go into effect October 15, 2019.

On October 11, 2019, several Federal Courts temporarily stopped the government’s proposed changes from going into effect.

But, on January 27, 2020, the U.S. Supreme Court allowed the new rule to start. On January 30, the government announced that the rule will go into effect on February 24, 2020. This means that the new public charge rule will only be applied to immigration paperwork filed on or after February 24, 2020.

Note that even though the new public charge rule is currently set to go into effect, advocates are still trying to stop the rule in the courts, which means the new restriction may not be permanent.

Please check in for updates. Stay informed at nlsla.org and protectingimmigrantfamilies.org.

 

Frequently Ask Questions:

What is the Public Charge Test?

It is a test that immigration officials use to decide who they will give a visa to, who can renew certain temporary visas, and who can get Lawful Permanent Residency (LPR)—also known as a green card. It does not apply when a green card holder applies for citizenship. The test asks whether someone is likely to become dependent on the government in the future.

The public charge test is only used at some steps of the immigration process; it only is applied to some immigrants; and it only considers the use of some public benefits, not all! In reality, the use of public benefits affects very few immigrants.

Does the public charge test apply to all immigrants?

No! Many immigrant categories are NOT affected by the public charge test.

The public charge test doesn’t apply to the following immigrant categories:

  • Refugees and Asylees
  • T Visa (Trafficking)
  • U Visa (Crime Victim)
  • Special Immigrant Juveniles (SIJS)
  • VAWA recipients
  • DACA
  • Temporary Protected Status (TPS)
  • Cubans
  • Amerasians
  • Afghan & Iraqi Special Immigrants
  • NACARA
  • HRIFA
  • Lautenberg parolees

The rule also does not apply when these immigrants apply for a green card!

 

I already have a green card. Does the public charge test apply to me?

The Federal Government cannot cancel your green card just because you, your family, or children get public benefits.

The public charge test is not used when a green card holder (aka lawful permanent resident or LPR) applies to become a U.S. Citizen, a process known as “naturalization.” You cannot be denied citizenship for lawfully receiving benefits.

BUT: the Public Charge test may be applied to you if you leave the U.S. for more than 180 days. If you plan to leave the U.S. for more than 180 days, talk to an immigration attorney before you leave.

What if I’m undocumented? Does the public charge test apply to me?

If you are undocumented in the United States right now and are not applying to change your legal status, no immigration official is looking at you or your family’s use of public benefits. If you apply to change your immigration status (for example, if you apply for a family-based visa), then at that time, immigration officials may apply the public charge test.

If you think you may have a path to legal status in the future, you can speak to an attorney and make a decision then about your children’s uses of public benefits.

Also, your child’s use of benefits does not affect you. (See question #8 for more information).

If the public charge test does not apply to all immigrants, when does the public charge test get applied?

The public charge test is used by immigration officials to decide whether a person can come to the U.S. or if a person can get a green card (lawful permanent resident or “LPR” status) through a family-based petition, employment-based petition, or some specific other categories.

It is applied when an immigrant is outside of the U.S. and is requesting a visa to come visit or remain in the United States.

It is applied when an immigrant is already inside the U.S. and is requesting a green card (applying for adjustment of status) usually through a family-based or employment-based petition, or another specific category.

 

What public benefits will the immigration official look at to decide whether a person may become a public charge?

The public charge test only looks at whether you received certain benefits.

Up until February 24, 2020, the public charge test looks at whether an immigrant got any of these benefits:

  • Cash Assistance Program for Immigrants (CAPI)
  • Supplemental Security Income
  • CalWORKS (TANF)
  • General Relief
  • Long-term care in an institution at the government’s expense

After February 24, 2020, the public charge test looks at whether an immigrant go these benefits:

  • Cash Assistance Program for Immigrants (CAPI)
  • Supplemental Security Income
  • CalWORKS (TANF)
  • General Relief
  • Long-term care in an institution at the government’s expense
  • CalFresh (SNAP)
  • Public Housing
  • Medi-Cal (Medicaid), EXCEPT for emergency Medi-Cal, state funded Medi-Cal, Medi-Cal for children under age 21 and Medi-Cal for pregnant women up to 60 days post-partum

 

What public benefits do immigration officials NOT look at to decide whether a person may become a public charge?

Under the new public charge rule, many government-funded services are still safe to use and do not cause any immigration harm.

Medicare Part D Los-Income Subsidy
Emergency Medi-Cal
Health Center sliding fee programs
My Health LA
CHIP
Use of Medi-Cal by pregnant women
Use of Medi-Cal by children up until age 21
State funded benefits under PRUCOL
WIC
School Breakfast and Lunch
Child Care
Head Start
Public School
Foster Care Benefits
Food banks
Shelters
Earned Income Tax Credit
Low Income Tax Credit Housing
FEMA Assistance (Disaster Relief)
Student Loans
Veterans Benefits
Unemployment
Workers’ compensation
Retirement Benefits (any work insurance benefits)

Does my child’s use of public benefits affect me?

No. The public charge test looks at the benefits you use, not the benefits your children or other family members use. There is no reason to cancel your children’s benefits. If you have very low income, however, that is a negative factor in the public charge test.

 

Will my past use of Medi-Cal, CalFresh, Section 8 or Public Housing be used against me?

No. Newly added benefits to the Public Charge test, will only be considered if they are received after February 24, 2020.

Stay calm. You have time to speak to a trusted attorney (not a notario!) before dropping any benefits.

Can I get deported for using public benefits?

Very few people are deported based on public charge.

In order for the government to be able to deport someone based on the immigrant depending on public benefits, the government has to prove to an immigration judge:

  • The green card holder became a public charge within the 5 years of the date they became a green card holder, or within 5 years of the last time they came into the United States, and
  • They have become a public charge for reasons that existed before they became a green card holder

The government also has to prove to an immigration judge:

  • That state law imposes a legal requirement that the immigrant reimburse the government for the cost of the benefits they received,
  • That the immigrant received notice from the government that she or he had to pay the agency back within 5 years of the immigrant becoming a green card holder or within 5 years of the last time they came into the United States, and
  • That the immigrant failed to repay after government took legal action and won.
If I apply for benefits or if my children receive benefits, will the county give my information to immigration enforcement?

No. The information you share with the county is confidential, and can only be used to confirm eligibility for public benefits. The county does not share personal information with immigration enforcement.

The county does not share any information about family or household members who are not applying for benefits, and people in the household who are not applying for benefits do not need to share their personal information.

Is there anything I should do now if I am receiving government benefits?

If you receive any public benefits, you should be careful to report your income correctly and timely to avoid overpayments and potential fraud charges. Be aware of your Income Reporting Threshold (IRT) amount and report your income immediately if it reaches that amount, even if it’s in between your regular report dates. Being accused of fraud (not telling the truth about your situation in order to get more benefits) can affect your immigration options.

 

Still not sure if the Public Charge Rule will apply to your case? Take this test:

https://www.keepyourbenefitsca.org/en

https://www.keepyourbenefitsca.org/es

https://www.keepyourbenefitsca.org/zh-hans

You can also call our hotline for more information or a referral: 1-800-433-6251

If you are in LA County, you can also call the Office of Immigrant Affairs for a referral to an immigration attorney: 1-800-593-8222