In 2019, DHS dramatically expanded the definition of “public charge” so that green card and other visa applicants would be denied not for being “primarily dependent on the government for subsistence” (the current standard) but instead for being “more likely than not” to use certain public benefits at any point in the future.

Under the final regulation, DHS created the following new criteria for denying a green card application from within the United States:

(1) Prior use of certain government benefits. Instead of limiting the definition of off-limits government benefits to welfare payments and subsidized long-term institutionalization, the policy expanded the definition to include a wider range of common government benefits:

• All of the status quo benefits list above (SSI, TANF, general assistance, and long-term institutional care)
• Supplemental Nutrition Assistance Program (SNAP), commonly knowns as “Food Stamps”
• Section 8 housing and rental assistance
• Federal housing subsidies
• Nonemergency Medicaid benefits (with exceptions for children under 21, people with disabilities, pregnant women, and mothers within 60 days after giving birth)

A “public charge” denial would be triggered if someone received one or more of the above public benefits, for more than 12 months in aggregate within any 36-month period. Receipt of two benefits in one month counted as two months.

(DHS did not penalize applicants for use of these benefits by a spouse or child, in a departure from previously reported drafts.)

It’s important to note that DHS did not have the authority to make anybody ineligible for these benefits, which are administered by other federal agencies under various acts of Congress. DHS was, in effect, be penalizing visa applicants for using benefits they wwere allowed to take advantage of under existing law.

And it’s also important to understand that the great majority of people applying for green cards are not even eligible for the very benefits that the DHS public charge rule sought to penalize. Unfortunately, this rule created a “chilling effect” that scared many people into dis-enrolling from public benefits even though they didn’t need to.

(2) Likelihood of future use of government benefits. Although the following general criteria are defined by Congress, DHS greatly expanded the number of specific factors that immigration officers had to take into account when determining whether or not a visa applicant was likely to become a “public charge” at any point in the future.

• Age: Applicants could be denied if they were younger than the minimum age for full-time employment (18), older than the minimum “early retirement age” for social security purposes (61), or otherwise at an age that impacted their “ability to work.”
• Health: DHS scrutinized any medical condition and assessed whether this condition could affect the applicant’s ability to work.
• Family size: Having more children or other dependents could increase the likelihood of a visa denial.
• Skills:  DHS determined whether an applicant had “adequate education and skills to either obtain or maintain employment” (if authorized to work), by looking at employment history, high school degree and higher education, “occupational skills, certifications, or licenses,” and proficiency in English or other languages.
• Financial status: Above and beyond looking at an applicant’s income and assets (see below), DHS assessed credit history, credit score, and financial liabilities, plus whether the applicant had private health insurance or enough resources to cover “any reasonably foreseeable medical costs” that could interfere with work or study.

(3) Insufficient financial resources. Even if an applicant had never used government benefits in the past and met all of the above criteria to demonstrate low likelihood of using benefits in the future, they could still be blocked by an entirely new requirement: personal financial resources. DHS required a new form called the “Declaration of Self-Sufficiency” (Form I-944) to accompany most applications for green cards. This form collected information intended to help immigration officers determine whether the applicant was a “public charge” under the new, more expansive criteria outlined above.

This new form is not to be confused with the “Affidavit of Support” (Form I-864), which Congress has mandated since 1996 to demonstrate the financial resources of the person sponsoring the applicant for a green card or other visa. Until now, immigration officers have typically given great deference to an Affidavit of Support showing that the sponsor has an income (or asset equivalent) of at least 125% of the Federal Poverty Guidelines, since this is a statutory threshold indicating that the visa applicant will have sufficient financial resources to avoid becoming dependent on government benefits.

Under the new policy, however, DHS imposed similar financial requirements on the applicant, not just the sponsor. At a minimum, applicants had to demonstrate household income (or asset equivalent) of at least 125% of the Federal Poverty Guidelines. But in addition, DHS set an entirely new and higher household income threshold at 250% of the poverty guidelines, establishing this much higher hurdle as a “heavily weighted positive factor.”