Trump’s indecent proposal on the Public Charge rule


The U.S. has had a public charge rule in its immigration laws for more than a century, but President Trump’s recent proposal to redefine ‘public charge’ may have a chilling effect on immigrants. Essentially the proposal states that any alien the government believes will most likely use or receive a wide range of public assistance, or has used it in the past, will be inadmissible to come or stay in the U.S. This proposal encompasses the past, present, and future, and in some cases may even affect lawful permanent residents.

The USCIS has mandatory guidelines in assessing whether an immigrant or non-immigrant will be deemed a public charge. For instance, if it is determined that an applicant desiring to come to the U.S. will most likely need public assistance, they will be deemed inadmissible. Likewise, if an individual already residing in the U.S. legally wants to adjust their status and is found to have used public assistance, they may be subject to deportation proceedings.

Per Congress, the following groups will not generally be impacted by the public charge rules: Legal Permanent Residents, Refugees, Asylees, those with T or S visas (trafficking victims and witnesses/informants), and those applying for VAWA visas, though going abroad for over 180 days may put individuals at risk of being treated as applicants for admission. There is a proposal to exempt active duty service and reserve members as well as their families, and there is an exemption for individuals able to pay a $10,000.00 minimum public charge bond for fear of admissibility rejection in the use or perceived use of public assistance.

The public charge law will mostly affect new applicants to the U.S. that do not fall under the mentioned categories, those seeking adjustment to legal permanent residence, and those wanting to extend their stay. The individual and dependents if applicable will be assessed for self-sufficiency and non-reliance on government assistance.

The parameters in deciding who is a “public charge” include monetary and non-monetary conditions, as well as information on sponsorship, individual or family financial status, age, health, education, and skills. These factors will be analyzed in determining if the individual will most likely become a public charge. If it is concluded that the person is a public charge, they will be inadmissible for entry to the U.S. or may be referred for deportation.

The breakdown in determining grounds for a public charge includes monetary public assistance such as SSI, TANF, government assistance like Medicaid to cover long term healthcare needs, Section 8 housing and rental assistance, SNAP, and any state or federal assistance programs. Non-monetary public aid that is not cash-based will be judged on the duration of time and will include subsidies for Medicare Part D and subsidized housing.

Other factors will be weighed to determine self-sufficiency:

  • Sponsorship with affidavit of support (meeting at least 125% of Federal Poverty Guidelines (FPG)

  • Ages between 18-61 will be viewed to assess employment prospects, public assistance, and social security eligibility (elderly will weigh negatively)

  • Health condition (poor health will weigh negatively if the individual cannot afford care and relies on government assistance)

  • Individual and Family status will be assessed in terms of resources, finances, and assets (250% of the 2018 FPG is $30,350/individual & $62,750/family of 4, and is considered favorable)

  • Education and skills will be assessed (higher degrees and certificates will weigh more favorably)

  • Employment history and prospective employment

  • Use or receipt of public assistance and use of waiver fees for immigration forms

Lawful Permanent Residents who give up status, commit a certain egregious crime, or reside outside the U.S. for more than 180 days will be subjected to the public charge test on their return. The “burden of proof”, however, is on the U.S. government to show unequivocal evidence that the individual is a public charge risk. The person should not fill out form I-944 or any similar form if requested to assist the government in discerning grounds of being a public charge, as it is their constitutional right.

Public comment is open on the proposal, but the December 10, 2018 deadline is fast approaching. By law, the administration will be obligated to respond to each before the proposal is published. Once published there is a 60-day period before it will be enacted. The page to leave a comment is here:

Trump’s proposal clearly favors immigrants who are young, educated, and financially well off. The odds will be stacked against those wanting to come to the U.S. if they are not in this category, and for those already here caught in the middle of having used public assistance or going without it for fear they will be deported. Once again, this is yet another means to cause more harm than good in the administration’s war on immigrants. Those already here working on improving their lives will have more hurdles, and thousands more people per year may be removed or shut out of the country.

For more information, please see this blog entry by Attorney Cyrus Mehta: