The term “charge” can be used in many ways. In basketball, a “charge” is when an offensive player with the ball runs over, or rushes into, a (supposedly) stationary defensive player. In baseball, a batter may “charge” the mound when he’s hit by a pitch (or nearly hit by a pitch, which is called a brush-back).
In the world of immigration, the word “charge” comes up in several ways as well. The government can “charge” an alien with being removable from the United States based on one or more violations of the Immigration and Nationality Act (“INA”), as amended. And, for our purposes here, the government can find an alien to be inadmissible to the United States if it thinks that at any time in the future he or she is likely to become a “public charge”. So what does that really mean?
The public charge ground of inadmissibility bars any foreign national who, “in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”[1]
The notion of someone likely at any time becoming a “public charge” can be the basis for the Department of State (“DOS”) and U.S. Customs and Border Protection (“CBP”) to deny admission to the United States to both intending immigrants and nonimmigrants. It may be used by officials at DOS in their adjudication of immigrant and nonimmigrant visa applications at U.S. embassies and consulates, and by CBP when lawful permanent residents (i.e., “green card” holders) are returning from long trips abroad of more than six months. It can also be used by U.S. Citizenship and Immigration Services (USCIS”) against noncitizens when it adjudicates adjustment of status applications (i.e., “green card” applications).
The law allows consular officials, or the Attorney General, to consider the age, health, family status, assets, resources, and financial status, and education and skills of the applicant. The law also allows consular officials, or the Attorney General, to consider a legally enforceable “affidavit of support” from a family member (and sometimes non-family members).
The Trump Administration redefined the phrase “likely at any time to become a public charge” in several ways. Most importantly, they broadened a rule that prohibited immigrants who received certain government benefits from obtaining permanent residence in the United States (e.g., people who received food stamps or Medicaid).
The public charge rule has been around in some fashion or another seemingly forever.[2] In modern times, however, it has been used by the federal government to exclude persons who are seemingly unable or unwilling to support themselves and their immediately family members.
In 1999, legacy Immigration and Naturalization Service proposed a change and a promulgated a rule, which the DOS pretty much adopted too, that a noncitizen becomes a public charge for inadmissibility or deportability purposes if he or she becomes “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”[3]
The Trump Administration had significantly expanded the definition of a public charge to include anyone who received a government benefit for more than 12 months in any three-year period. A new rule, proposed recently by the Biden Administration, says immigrants will only be deemed to become a public charge when they are likely to become primarily dependent on the government for subsistence, essentially going back to the 1999 regulation.
The Trump Administration’s change had the potential to dramatically expand the number of immigrants that DOS, CBP or USCIS could deem ineligible for lawful permanent residence or admission to the United States on account of income level and prior use of certain public benefits, and exacerbate a chilling effect felt throughout immigrant communities.[4] This rule punished individuals for seeking very basic needs.
Government benefit programs help families that may not have many assets or other resources to provide for their basic needs. Many of our ancestors came to the United States with little more than the clothes on their back and a few dollars in their pocket. They started at the bottom and worked their way up. We are at our best when we allow people from all walks of life to come to the United States to pursue the American Dream, not just the privileged.
[1] INA §212(a)(4).
[2] As far back as 1882, Congress excluded persons who were “idiots, lunatics, convicts, and persons likely to become a public charge.” Act of Aug. 3, 1882, 22 Stat. 214. Nine years later Congress added “paupers” to the list. Act of Mar. 3, 1891, 26 Stat. 1084; see also Act of Mar. 3, 1893, 27 Stat. 570. In 1915, the Supreme Court defined a public charge as a person who “by reason of poverty, insanity, disease or disability would become a charge upon the public.” Gegiow v. Uhl, 239 U.S. 3 (1915).
[3] INS Memorandum, “Public Charge: INA Sections 212(a)(4) and 237(a)(5)” at 2, and (May 20, 1999) and 64 Fed. Reg. 28676 (May 26, 1999).
[4] According to the Urban Institute, about 20% of adults in immigrants families indicated that they or a family member opted not to participate in a non-cash public benefit program in 2019 because of their concern over jeopardizing their green card eligibility. See https://www.urban.org/research/publication/one-five-adults-immigrant-families-children-reported-chilling-effects-public-benefit-receipt-2019.