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At Pelton + Balducci, clients often ask us about the public charge rule. This is a rule that’s been in the news quite a bit recently because there have been a number of policy changes that have affected how the rule works.

In short, the public charge rule is grounds for inadmissibility. An immigration official can deny someone a visa or a green card on the grounds that they are likely to become a “public charge,” or financially dependent on the U.S. government.

The Trump Administration attempted to make some radical changes to the rule that would make it easier to deny people’s cases. However, a lawsuit blocked these changes from taking effect and the Biden Administration has withdrawn the proposed changes. 

From New Orleans immigration attorneys Pelton + Balducci, here’s everything you need to know about the public charge rule in 2022.

Definition of “public charge”

In 1999, the Immigration and Naturalization Service (INS) issued a “field guidance” on the definition of the term “public charge.”

In 2018, the Trump administration broadened that definition, making it easier for immigration officials to deny applications on public charge grounds, but this effort was initially blocked by the courts and then withdrawn by the Biden Administration.

So we’re back to the 1999 guidance. The Department of State (DOS) defines the public charge grounds of inadmissibility as an individual “likely to become primarily dependent on the U.S. government for subsistence” after admission to the United States. This means either that:

  • An individual receives public cash assistance for income maintenance; or
  • institutionalization for long-term care at government expense

Benefits that Count Against You in the Public Charge Rule

The so-called “means-tested” public benefits that can trigger a public charge finding are:

  • Temporary Assistance for Needy Families (TANF), 
  • Supplemental Security Income (SSI), and 
  • state and local cash assistance programs.

However, it’s unlikely that someone applying for a visa to the US would qualify for any of these programs.

Other Benefits Relevant to Immigration

The State Department notes that receipt of many public benefits programs do not make someone a public charge. 

Some benefits that do NOT make someone a public charge include:

(a)  (U) The Food Stamp Program;

(b)  (U) The Medicaid Program (other than payments under Medicaid for long-term institutional care);

(c)  (U) The Child Health Insurance Program (CHIP);

(d)  (U) Emergency medical services;

(e)  (U) The Women, Infants and Children (WIC) Program; and

(f)   (U) Other nutrition and food assistance programs.

The Immigrant Legal Resource Center (ILRC) put together a list of government benefit programs that are safe to use without triggering public charge status.

Affidavit of Support

In many types of cases (especially family-based green card cases), the government requires that the U.S. citizen or permanent resident petitioning for their family member must sign a contract with the government in which they promise to maintain the immigrant at a certain level of income.

This contract is called the “affidavit of support” and is completed on form I-864. In such cases, the I-864 is required even if the immigrant is employed and has a comfortable income.

What this means for you as an immigrant in Louisiana

Whether you’re living in another country and applying for a visa to come to the United States, or you already live in the U.S. and you’re applying for an adjustment of status, it’s important to have a clear understanding of the public charge rule so that you and your family members don’t miss out on important benefits.

Our office can help you determine whether or not your circumstances could lead to a public charge finding.

Immigration officials are instructed to only consider your current circumstances and whether these suggest that you are likely to become a public charge in the future.

In other words, if you received benefits in the past but are unlikely to do so in the future, you would not be considered a public charge because you received the benefits in the past.

However, if you think that you might run into trouble with the public charge rule, or if you have any questions about what public benefit programs you can use, reach out to an experienced Louisiana immigration lawyer to discuss your concerns.

Contact Louisiana immigration lawyers Pelton + Balducci

At Pelton + Balducci, our experienced immigration lawyers have experience helping people through every step of the immigration process. We believe that you deserve to build the life that you want in Louisiana and throughout the United States, and we know how to help you achieve that dream.

Contact us today to schedule a free consultation and talk about your case.

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