The Department of Homeland Security (DHS) announced on September 22 plans to publish a proposed rule revising the definition of “public charge” under the Immigration and Nationality Act (INA).

The message is clear. President Trump’s administration wants to scare immigrants and limit legal immigration. By design, the rule gives USCIS extraordinary discretion to deny green cards to those who otherwise would qualify.

Under the tenets of the new proposal, the Department of Homeland Security (DHS) could deny green cards and temporary visas to anyone deemed likely to receive any government benefit from a specified list, at any time now or in the future.

Public Comment Period

DHS has not published the rule in the Federal Register yet. Once published, the public will have 60 days to submit comments. It is imperative that members of the public take action. By submitting substantial comments to DHS, we will show them we will not allow the administration to bully immigrants.

Once DHS publishes the rule, anyone can make comments. In addition to immigrants and immigration attorneys, we need American citizens of all backgrounds to stand up and defend the values that make America great.

It is important to note that this process is not a vote. Agencies cannot base their final rule based on the number of comments made. The agency must base its reasoning and conclusions based off of the data, expert opinions, and facts.

Furthermore, saying you do not support the rule is not enough to stop the proposed rule. If the comment period shows persuasive new data, policy arguments, or poses difficult questions or criticisms the agency must respond.

In order to issue a final rule, DHS needs to conclude the rule it proposes will help accomplish its goals or solve the problems identified during the public comment period.

Once the 60-day notice and comment period is over, DHS will consider the comments then a final rule for publication in the Federal Register. Then the rule takes effect.

At the moment, it is too early to tell what the final rule will look like, making the public comment period even more important. Particularly disturbing is the potential effect this policy would have upon a disabled immigrant.  DHS must know that we will not stand for this.

How Will DHS Determine Who is a Public Charge?

According to the draft rule, DHS would instead determine whether an applicant is likely to become a public charge based on the “totality of the circumstances.” However, it ambiguously does not specify why someone deemed likely to receive any government benefit they specify could or should be denied.

Congress already prevents most non-citizens from using welfare, SSI, and non-emergency Medicaid. Congress also requires most green card applicants to have a financial sponsor. The sponsor declares their willingness and ability to support the intending immigrant preventing them from becoming dependent on government benefits.  As such, the sponsor also assumes financial responsibility if such benefits are used.

Currently, one is not considered “likely to become a public charge,” if they have a sponsor who demonstrates income greater than 125% of the federal poverty guidelines (currently $20,575 for most couples without children).

The only way to stay in line with the new rule would be to demonstrate a household income above 250% of the federal poverty guidelines amounting to $41,150 for a couple with no children and $73,550 for a family of five.

Some Exemptions Will Apply

According to USCIS, there are certain groups of people who will be exempt from public charge. There are some who may get a waiver for public charge when applying for a green card or other benefits with USCIS. These include:

  • Refugees
  • Asylum applicants
  • Refugees and asylees applying for adjustment to permanent resident status
  • Amerasian Immigrants (for their initial admission)
  • Individuals granted relief under the Cuban Adjustment Act (CAA)
  • Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA)
  • Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA)
  • Individuals applying for a T Visa
  • Individuals applying for a U Visa
  • Individuals who possess a T visa and are trying to become a permanent resident (get a green card)
  • Individuals who possess a U visa and are trying to become a permanent resident (get a green card)
  • Applicants for Temporary Protected Status (TPS)
  • Certain applicants under the LIFE Act Provisions


Ask Henry Lim
Do you have a question for Henry Lim? During nearly 20 years of practicing law, he has helped more than 10,000 families with their immigration issues. You can Ask Henry a question at [email protected] or submit a video question by sending a link to one of our channels. For legal assistance, email or call for an appointment: 407-897-8870. Our first consultation is complimentary