Overcoming Public Charge Issues: Insights From Tadeo & Silva Law

Discover the key strategies to overcoming public charge issues with comprehensive insights from Tadeo & Silva Law. Call us today for more information.

Author: Massiel Silva Tadeo, Founder, Tadeo & Silva

Attorney Massiel Silva Tadeo is a partner and owner at The Tadeo & Silva Law Firm. She specializes in removal (deportation) defense, family immigration, and hardship waivers. Updated on: December 18, 2023.

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The Public Charge Ground of Inadmissibility

A significant concern for individuals looking to immigrate to the U.S. is the issue of admissibility, that is, whether they are legally allowed to enter the country. There are several grounds for inadmissibility, including health concerns, criminal history, and national security concerns. Public charge concerns stand out because almost every immigrant is subject to a public charge inadmissibility determination.

With recent changes in the past few years, it can take time to understand the public charge rule. Under the rule, a noncitizen’s visa, green card, or adjustment of status can be denied if they are “likely at any time to become a public charge.” Therefore, you must understand the public charge rule criteria and any issues that may arise due to your circumstances.

If you are applying for a nonimmigrant visa, green card, or an adjustment of status, contact Tadeo & Silva Law to schedule a consultation.

What Is a Public Charge?

A noncitizen’s visa, green card, or adjustment of status application can be denied if it is found that they are “likely to become a public charge at any time.” A “public charge,” according to U.S. immigration law, is an individual who is likely to become primarily dependent on government assistance for subsistence.

In simple language, ‘subsistence’ means supporting oneself at a minimal level. This means a public charge is someone whose daily survival is at the government’s expense.

For noncitizens already in the U.S., their likelihood of becoming a public charge is mainly determined by whether they have already received certain public benefits. Meanwhile, for immigrants living outside of the U.S., the consular officer will primarily look at several factors regarding health, education, finances, and family situation to determine whether that person is likely to become a public charge.

Another factor that could affect a public charge determination is an affidavit of support. This affidavit is a contract that legally mandates the sponsor to be financially responsible for the immigrant if they cannot support themselves. The sponsor also has to meet specific minimum income requirements.

Some types of green cards require sponsorship by a family member; in these cases, applicants for permanent residence have to submit an affidavit of support signed by their green card sponsor. Those already residing in the U.S. and applying for an adjustment of status may also need to submit this affidavit if they have yet to be credited with up to 40 quarters of work (typically ten years) in the United States.

The Evolution of Public Charge Considerations

The public charge rule has been included in U.S. immigration law since 1882. When it was initially included in federal law, it allowed the U.S. government to deny entry to “any person unable to take care of himself or herself without becoming a public charge.” Since then, several categories of people have been included in the public charge rule, including the impoverished, ill, and criminals.

In 1999, a notice by the Immigration and Naturalization Services issued guidance on determining whether an individual is a public charge for purposes of admission to the U.S. or adjustment of status. It defined a public charge as someone likely to become dependent on the government for subsistence, as evidenced by reliance on public cash assistance for income or long-term institutionalization at the government’s expense.

Under the Trump administration in 2019, the Department of Homeland Security’s (DHS) final rule broadened the definition of a public charge. Previously excluded programs like non-emergency Medicaid for non-pregnant adults and the Supplemental Nutrition Assistance Program (SNAP) were included in the considerations for a public charge determination.

In 2022, under President Biden, the rule was replaced after being suspended in March 2021. The current status quo is similar to the pre-2019 situation, as evidenced by the USCIS’s current policy on the public charge rule.

The Legal Framework of the Public Charge Rule

The current legal framework is based on the new DHS final rule. More importantly, central to any discussion on public charge determinations are the provisions of INA § 212(a)(4) found at USC §1182 (a)(4).

Criteria for Determining Public Charge Status

According to the provisions of the INA and USCIS policy on the public charge rule, the criteria for determining an individual’s likelihood of being a public charge include:

  • Age, family status, health, financial status, assets and resources, skills, and education.

  • Receipt of public cash assistance from the following programs for income maintenance

    • Supplemental Security Income (SSI);

    • Temporary Assistance for Needy Families (TANF) program; and

    • State and local cash benefit programs (often called ‘‘General Assistance’’ programs).

  • Institutionalization for long-term care at government expense.

The USCIS does not consider the Children’s Health Insurance Program (CHIP) and most other health, nutrition, housing, education, and childcare programs.

Some classes of visa applicants are exempt from public charge determinations. Experienced immigration lawyers can provide more specific guidance regarding your situation, proceeding with your application, affidavit of support, or claiming an exemption from the rule.

Approaches to Overcoming Public Charge Grounds of Inadmissibility

First, you should evaluate your potential to be categorized as a “public charge” under the rule. This includes looking at your circumstances, gathering necessary documents, and receipt of public benefits in the past.

Showing your self-sufficiency is critical to overcoming the public charge grounds of inadmissibility. You should also confirm that the sponsor filling out your affidavit of support (if required) meets and surpasses the federal poverty guidelines. An immigration attorney can guide you on the criteria and strategies to overcome potential issues.

Finally, and most importantly, you must prepare for your immigration interview. This is the time to address any concerns with your application. This interview is either a consular or I-485 Interview. Skilled professionals like the attorneys at Tadeo & Silva Law can help you prepare for your interview.

Let Tadeo & Silva Law Help You With Your Immigration Application

Overcoming public charge issues demands understanding the nuances of U.S. immigration law and policy. Professional insights and a strategic approach from an experienced immigration law firm like Tadeo & Silva Law can help.

The value of experienced legal counsel in this complex area cannot be overstated. At Tadeo & Silva Law, we have a proven track record securing favorable client outcomes. Beyond outcomes, we are concerned about the welfare of our clients, and we approach their cases from a place of compassion, care, and honesty.

To embark on your journey with informed legal guidance, consult us today and take the first step towards a secure and prosperous future in the United States.

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