Public Charge Rule Details and Impact for H1B - H4 - L1 Visa holders Info

Public Charge Rule for GCs, Transfers, Extensions – H1B, H4, L1 Impact

In US Immigration - Visas by KumarUpdated : 47 Comments

The USCIS, DHS rule titled “Inadmissibility on Public Charge Grounds”, popularly known as “the Public Charge Rule” is one of the biggest changes to US legal immigration in many years. It is officially published today, Aug 14th 2019,  in Federal Register as final rule by USCIS. The rule will be in effect from October 15th, 2019. The final rule document is a massive 837-page document, formatted to fit in 217 pages in federal register. There were 266,077 comments from public for the proposed rule…

Update : On October 11th, 2019 Courts have blocked the Public Charge Rule going into effect. There is a nationwide injunction order that blocks implementing of the public charge rule. You can read Public Charge Rule Blocked – Official Court Orders, Summary

The rule impacts a lot of US visa categories and green card (GC) seekers. We will focus on the general basics of “Public Charge Rule”, its significance, how they will determine, if someone will likely be a public charge, exclusions & exemptions, key factors that are considered for determination, if someone is likely to be a public charge and how it will impact H1B, H4, and L1 visa holders, including Green Card seekers. At the end we will also have FAQs clarifying common questions.

Why is Public Charge Rule a big deal? What is its significance in US Immigration History ?

It is estimated by US Govt. that this new rule would impact a population of about 382,264 annually to be reviewed under this new rule…It is also estimated that the new public charge rule would save about $2.47 Billion Dollars annually in public benefits…Migration Policy Institute estimates that the new income requirement would have denied about 56% (2.3 Million ) of family based green card applicants that were issued in last 5 years. Also, immigration firm Boundless estimates, it could impact over 50% or 200,000 marriage based green cards given every year. It also will have serious effects on the diversity of immigrants in US.

What is the general “Public Charge Rule” in US ?  What is the background ? Is it fully new ?

Public charge rule is not new, it has been there in the US since 1880s. There were some revisions done over the years. The general background of public charge rule is that anyone planning to move to America as permanent resident or get green card should not be primarily dependent on Government benefits for their livelihood in the US. The public charge rule basically wants people moving to US be self-sufficient and they do not become “public charge” or “burden to the US tax payers or US Govt”.  The logic is that immigrants planning to settle in US cannot just become burden by using the US Government programs like food stamps, Medicare, housing benefits, etc. and they need to be self-sufficient. In fact, there are sponsor affidavits (legal contract) in place today for family sponsored green cards categories to make sure the moving family members do not become a public charge.  

What is the New “Public Charge Rule” ? General scope of New “Public Charge” ?

Over the years, the applicability of the public charge rule has been changing with government policies. Since Trump Administration took office, they haven pushing many immigration related changes that came from Buy American, Hire American EO, Many H1B Visa related changes, etc. Similarly, in January 2018, the US consular posts also implemented revised guidelines to ensure Visa officers assess the applicants, if they would become a “Public Charge” for issuance of visas. Read Public Charge Rules at FAM State.gov.

USCIS says that the statue related to ‘public charge’ does not clearly define what is meant by “public benefit” and “public charge” to determine, if foreigners living in US or planning to get green cards would be considered as public charge.  They say that the ‘new public charge rule’ that is published now defines more precisely ‘public benefits’ and ‘public charge’, for assessment to determine if someone would likely become a public charge and exceptions for the same. 

What is a ‘Public Benefit’ ?   When does it become a ‘Public Charge’ ?

Below is general scope that USCIS will consider as ‘public benefit’ used by an individual.

  • General Assistance programs or any of the cash assistance programs for income maintenance from federal, state, local or tribal.
  • Supplemental Social Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Food Stamps, also called as Supplemental Nutrition Assistance program(SNAP)
  • Medicaid that is Funded by Federal with some exceptions.
  • Public Housing programs, Section 8 Housing Assistance, Section 8 project based rental assistance

If anyone, unless exempted, uses any of the above public benefits for more than 12 months in aggregate within a 36-month period, they will be considered as “public charge” and inadmissible on public charge grounds. If they use two benefits in a month, that is treated as 2 months and added towards the total 12 months aggregate.

Which Individuals does the Public Charge rule apply to ? Direct Recipients only ?

Unless, they are exempted by US Congress, below are the various categories of individuals that public charge rule will apply:

  • Foreigners seeking Non-immigrant Visas (H1B, H4, L1, etc.) or Immigrant visas outside of US
  • Foreigners seeking to do adjustment of status to Lawful Permanent Resident (Green Card) within US.
  • Not all, but some green card holders, when they return from abroad may fall under this rule based on their certain circumstances.

Only the direct recipients of the benefits are considered for the public charge rule, who used them for their own benefit. Meaning, if someone in your family receives benefits, those benefits apply only to them and does not apply to you for determining public charge inadmissibility.  Also, it does not apply to anyone such as guardians, who are receiving benefits on someone else behalf, including someone using power of attorney.  

What benefits are excluded ? Who else are exempted from the Public Charge Rule ?

Exceptions to the above public charge rule are below categories and individuals:

  • Individuals Serving in US Armed Forces, active duty or in reserve, including their spouses and children.
  • Applicants that are exempted by Congress such as refugees, asylum applicants, etc.
  • Adopted Children who will get US citizenship.
  • Any Medicaid received for emergency medical conditions or under Disabilities Act, including Medicaid benefits received by anyone under 21 years of age. Also, Medicaid benefits received by any woman in 60 days period from the last day of the pregnancy.
  • School based services or benefits for students until secondary education.

Requirement of Bond, if someone is determined as Public Charge

 USCIS says that to determine if someone would become ‘Public Charge’ is prospective ( happens in future) and they will consider the overall situation and circumstances of the individuals.  Also, with USCIS discretion, they may request a foreigner to submit a minimum bond of $8,100 (can be higher based on case) and allow them to file for adjustment of status, though they were determined as inadmissible based on public charge grounds.

How does USCIS determine, if someone would be a potential Public Charge in Future ?

USCIS says that they will look at the benefits used by individuals and review them against the 12 month aggregate benefits in last 36 months. In addition, they also will look at the below factors to determine, if they could “likely become a public charge at anytime in the future”. They will give weightage to below factors as positive or negative and determine, if someone could be a public charge in future.

  • Age, Health, Family Status of the individual  
    • Example, if age is between 18 and 61, it is a positive factor, if it is less than 18 or over 61, it is a negative factor
  • Assets that individuals hold, their resources, financial status
  • Education and Skills of the individual
  • Seeking immigration status, their duration of admission
  • Affidavit of Support Form I-864, where required based on the application.   

What factors have heavy weightage to determine potential Public Charge in Future?

USCIS says that they will look at the individual situation and determine the factors based on their conditions. Below are some examples.

  • Authorized to work, but not employed: If someone is authorized to work, but not employed or do not show any employment history or prospects for getting employment, then that individual would be considered a potential for public charge in future.  
  • Severe Medical Condition, No private insurance : If someone has got a serious medical condition and needs extensive treatment, they cannot work with their condition and they do not have option to buy private insurance or have resources to pay for the medical costs related to their medical condition, they would be considered as likely to become a public charge.
  • Household Income – 250% of Federal Poverty Line : If the individual does not have  annual income and assets of least 250% of the Federal Poverty Guidelines for their household size, they are considered a potential for public charge in future. For a family of four, it is about $62,000. So, if you make less than $62,000 a year and have four people in you family, then you are considered inadmissible under public charge.  
  • Private health Insurance, Affordable Care Act Premium Tax Credits :  In general, due to the complexities of the Affordable care Act (ACA) or Obamacare, DHS has decided to classify ACA as not a public benefit, so will NOT count for public charge determination directly. They do clarify saying that individual having private health insurance will have heavy positive factor weightage in the determination of the public charge on the overall application. Check Clarification in Federal Register
  • History of Public Charge: If the individual has any history of inadmissibility or deported based on public charge grounds determined by immigration judge or immigration appeals board.

Read detail article on How USCIS uses Form I-944 to determine Public Charge based on various factors.

Now that we understand the new public charge rule, it’s importance, what it means and who all does it apply to and how USCIS determines if someone could become a public charge in future, let’s look at the impact for temporary work visa holders such as H1B, L1 and their dependents on H4, L2 visas.

Impact of Public Charge Rule for H1B, H4, L1, L2 Visa Holders ? Applicability of 250% FPL ?

On a very high level, the impact for work visas holders such as H1B Visa or L1 Visa, including H4 Dependent Visa is very minimal. The reason is that most of these work visa holders arrive in US with a job and have enough income to support their family and also get employer’s private insurance in most cases, except few. With the new Public Charge rule, USCIS would like to ensure that the temporary work visa holders and their dependents do not become a public charge as well. So, they have added requirements that work visa holders and their dependents applying for extensions, transfers & change of status will be subject to the public charge rule review.

All the applicants who file form I-129 for H1B, L1 for extensions, transfers or COS, and their dependents either H4, F1 or L2 holder using form I-539 Form for extensions or COS will be subject to the public charge review. See below screenshot.

Public Charge rule applicability for H1B - L1 - and H4 Visa Holders

Impact of Public Charge Rule for H1B, H4, L1 and L2 visa holders – Key Takeaways :

  • New I-129 and I-539 Forms with Questions on receipt of Public Benefits : USCIS mentioned that the forms I-129 that is used for H1B, L1 and I-539 used by H4 and L2 holders for extensions and Change of status will have new questions that are related to receipt of public benefits. It will impact all the H1B, H4 and L1, L2 filings from October 15th. The H1B, H4 or L1, L2 holders need to prove that they have not used the public benefits for over 12 months in a 36 month period. Also, they may need to file form I-944, called as “Declaration of Self-Sufficiency” to prove that they do not become public charge as well.  If using I-539A form,  that is used by I-539 co-applicants they need to answer related questions for the same.  
  • Small Businesses with H1B using Affordable Care Act Premium Tax Credits  :  If you work for a small business or startup on H1B or L1 and leveraging the premium tax credits by Obamacare/ Affordable Care Act(ACA) or any subsidies related to the same, then you would not directly be counted towards the public charge. Due to the complexities of the ACA, DHS has decided to classify ACA as not a public benefit. Having said that, they clarified that Private Health Insurance would be treated as a positive factor in assessing the overall application for public charge. The positive factor of private insurance would not apply, if you are using any of the subsidies like premium tax credits. See below screenshots :Affordable Care Act and Public Charge Applicability for H1B holdersPremium Tax Credits- Obamacare - Impact for Public Charge Rule
  • No need to establish 125 % or 250% of Federal Poverty line: DHS clarified as responses to comments that the income level requirements  of 125% or 250% of FPL ( Federal Poverty Line) is not applicable to non-immigrant extensions, which is H1B, H4, L1, and L2 visa holders in our context. See below screenshot. They will primarily look at only the public benefits used by the non-immigrant visa holders in the last 36 months to determine, if they have been a public charge. Non-immigrant Extensions Rule of 125 or 250 wage level not applicable 
  • Need to file form I-944 for Adjustment of Status (form I-485) :  The green card applicants like H1B visa, L1 visa holders, etc., who would file for adjustment of status using form I-485 need to file the form I-944, “Declaration of Self-Sufficiency”. The details in the form will be used to determine, if the applicant would become a public charge in future.
  • Concern of Form I-944 – Tax payments, insurance, Credit info, etc. : Some H1B, L1, comments expressed concern that I-944 form requires that you submit many personal details related to medical, tax, finances that employers should not always know… USCIS mentioned that it is required to file all the details, if asked and failure to provide will result in denials.

Frequently Asked Questions (FAQs) on Public Charge Rule:

Does in-state tuition paid fall under benefit for Public Charge ?

No, USCIS does not talk about in-state tuition as a benefit for public charge. They do mention in comments that anything that is not listed as a public benefit in the definition section does not constitute a public benefit and cannot be used for public charge determination.  

Does Primary, Secondary Education in Public Schools count for Public Charge ?

No. Any education or public schools related benefits like attending primary or secondary school education does not count for the public charge determination.

Does past usage of Premium Tax Credits, Subsides count for Public Charge?

No. Premium tax Credits or subsides related to Obamacare are not a public benefit, so do not count for public charge. But, having a private insurance will be a big positive factor for overall public charge determination. If you are using premium tax credits or any subsidies in the past, which is before October 15, 2019, they will not count or even in future as well, they do not count. But, if you stop using them and get private insurance by October 15th, it will weight in for positive factor.  

Does Scholarships in Universities count for Public Charge ?

No, USCIS does not talk about scholarships and classify it as public benefit, so will not count towards public charge determination.

H4 or L2 EAD Holder Not working count as public Charge ?

No. There is no explicit mention of H4 or L2 EADs not working as public charge.

Is H4 EAD holder working as IHSS provider counted for Public Charge ?

No, USCIS does list In-Home Supportive Services (IHSS) provider as a public benefit, so it does not constitute as a public benefit to be counted for public charge determination.

Huge Emergency Hospital Bill – Waiver in past, does it count as public charge ?

No. Any emergency hospital expenses waiver or Medicare does not count towards public charge. Example, if you had got $10,000 waiver for $15,000 hospital bill, then it is not counted for public charge.

Does State Disability Insurance (SDI) benefits from State for Maternity and Paternity leave count for public charge ?

No. SDI related benefits like maternity, paternity leaves are not listed as public benefit in the new rule, so will not count towards the public charge determination

Does federal rebates and state refunds for electric car purchases count towards public charge?

No, they are not listed as public benefit or weighing factor. So, they do not count towards public charge.

I got laid off on H4 EAD and getting unemployment insurance and doing certification course with the help of TAA , TRA. Does it count for public charge ?

No. The unemployment insurance is not listed as public benefit, so it will not count towards public charge. Read below one for overall guidance.

How do I know, if my subsidy, insurance or tax credits is not a public charge ?

USCIS has given clear guidance that, if a benefit is not listed explicitly in the rule, then it is not classified as public benefit and will not count towards the public charge determination. So, don’t sweat too much on this. See below screenshot. DHS final rule on public benefits that are not listed as public charge

When will the public charge bill go into effect ?

October 15th, 2019. Any application that is post marked, meaning received by USICIS on or after October 15th, fall under the new USCIS rules for Public Charge.

From when will the public benefits be counted to determine public charge ?

Only public benefits used from October 15, 2019 will be counted towards determination of public charge. Applicability of Public Charge Rule for Benefits before October 15th 2019

Will public charge rule add more delays to H1B, H4, L1, other visas ?

Yes, it will very likely add more delays to the current processing times. Because, the adjudicator has to review the application, if there was any public benefit used and will count towards public charge. Also, as needed they may also require form I-944 “Declaration of Self-Sufficiency, which could even lead to more delays as that is a more comprehensive form.

Will the Public Charge Rule face any legal challenges in Court ?

Yes. In fact, on Aug 15, about 13 states sued the Trump administration challenging the new public charge rule. Also, there are many national level immigration agencies that are considering brining this public charge rule to court. We will need to see, how it will all pan out and how Govt will defend. It is also possible that there could be temporary hold, too early to tell.

That’s about it folks…What do you think of the Public Charge Bill ? How else do you think, it will impact ? Add your comments, thoughts.

Also, you may read Public Charge Rule Impact for F1, F2, OPT, STEM OPT

References :  Federal Register – Inadmissibility on Public Charge Grounds , Public Charge Rule – Official Public Inspection PDF File (above screenshots from this file)

   

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Comments ( 47 )

  1. Rajesh

    I was on Short term disability leave from May till September in the state of CA, meaning I was paid in part by state(or federal?) – not sure. Am I in trouble?

      1. Rajesh

        I looked into the forms since I’m in the middle of a H1 transfer. They’re asking if I’ve used in the past years, it’s not after Oct 15th.

        1. anonymous

          on the form it will say past years which means after oct 15 2019, say for eg you are applying for h1 transfer jan 2020, in the form you see past year which means after oct 15 2019 you used public benefits. open the instructions and read the Note which mentioned you do not need to report if you received benefits before oct 15 2019 but as of now court has issued nationwide injunction on this ruling until this blocked is removed we have to use old forms.

  2. TrueDreamz

    Hello Kumar,

    I am applying for my H1B extension and while filling I539 form for my spouse (H4) i noticed a newly added section “Publice Benefits” . Neither me nor my spouse have received any public benefits. There are two options to select :
    Option1- No, I have not received any of the above listed public benefits.
    Option2- No, i am not certified to receive any of the above listed public benefits.

    With reference to H4 extension,which option to select. Please guide.

  3. TrueDreamz

    Hello Kumar,

    I am applying for my H1B extension and while filling I539 form for my spouse (H4) i noticed a newly added section “Publice Benefits” . Neither me nor my spouse have received any public benefits. There are two options to select :
    Option1- No, I have not received any of the above listed public benefits.
    Option2- No, i am not certified to receive any of the above listed public benefits.

    With reference to H4 extension,which option to select. Please guide.

  4. anonymous

    my wife(h4) used pregnancy medi-cal(medicaid) from 10/2010-7/2011 and 8/2012-8/2013, does this qualify for public charge? do i need to disclose it in the form as she is the only one used it not me(h1) and she does not have ssn during that time. thank you.

  5. New rule

    Hi My friend wife ( H4 EAD) got laid off recently and getting unemployment insurance and doing certification course with the help of TAA , TRA something.i am not clear.
    This new rule affect them???

  6. SK

    I have a question as well. I am currently on H1B and have an extension of work visa coming up in the next couple of months. I currently have a loan from my 401k that I am currently paying off through the payroll. Does having an active 401k loan qualify as a public charge ? Couldn’t find anything in the actual document but want to ask rather than assume.

    1. administrator
      Kumar

      No, it does not qualify as public charge. 401K is your money and your company contribution, not a public benefit listed in the rule.

  7. Ahmed abbas

    I want to ask about who won in the dv lottery 2020 and i finished submitting my ds 260 and sent my supported documents to kentucky and iam waiting my interview. Is my case fall under pending applications. Becsuse we are won the lottery according to the old regulations

    1. administrator
      Kumar

      This would not apply to you…this is only applicable for any cases after October 15th and filing for Adjustment of Status.

  8. Guest

    There two major concerns – a lot of people from the subcontinent who have been waiting for more than a decade and waiting to file for adjustment of status naturally start encountering health issues like heart disease, cancer etc. I am not sure if having a medical condition (even with full insurance and handled with medications) means it is a a negative mark in the application. You are also essentially listing out all your medical conditions to the employer, attorneys etc.
    The second is similar in that families are in varying states of financial stability. Although incomes are generally far above the poverty levels, a lot of people get into debt, may be close to bankruptcy etc. It is unfair to punish people for the financial status brought about partly because of policies like not allowing the H1B spouses to work early on.
    I sure hope this gets challenged in court and gets stopped.

  9. ANSH

    Kumar I have a question about my situation and I hope you able to guide me.

    I am in US on H1B along with my family on H4 from April 2017, but we didn’t have any health insurance plan during this period and also we didn’t use any Obama care/Medicaid/Premium tax credit for same.
    1st employer not giving us health insurance to me and my family as per company policy for initial employment review period.
    2nd / current employer has policy for health insurance to us but as it is very very expensive to me I have opt out and so we dint have any Health insurance during this period. I am planning to enroll in Nov/December 2019 in open enrollment.

    After October 15’2020 we will need to file for H1B & H4 Extension as well as we are going to file I140 for green card so my question as will not had any health insurance in past from April 2017 , is it having any affect on my H1B, H4 OR I140 application?

    1. administrator
      Kumar

      Anything from the past will not matter. Only what counts is from October 15th. In general, irrespective of the public charge rule, you should have some health insurance, otherwise, it can be risky.

  10. Alex

    While on F1, used to have medicaid for Emergency services only, for more than 12 months in 36. Never used it though, and cancelled it in 2018. Would that affect a cos from H1b to green card?

    1. administrator
      Kumar

      It should not, as it clearly tells that anything emergency services does not count towards public charge. Also, in general, your past history does not matter as it only applies to the ones you use after Oct 15, 2019…so, nothing to worry.

  11. Anonymous

    Hi Kumar,

    If someone purchased a house in state county running programs. In my area few houses sold for low, 55+ based on income range. Will this impact?

    1. administrator
      Kumar

      The rule of thumb is, if your house falls or you get any benefits under the listed public benefit of housing ( check list above), then it will. It is hard to give a generic answer. You would need to check when you buy or get any sort of assistance, if those fall under that program.

  12. H1_12 Years

    I’m on H1 – getting tax credits/Subsidy on premium thru ACA/Obamacare – Does it Impact my h1 extension ? ( If I still continue Obamacare beyond Oct-15-2019 ) .. I did not get exactly what does it mean by ” Highly positive factor “

    1. administrator
      Kumar

      No, ACA credits do not count for public charge. Read clarification in article. Meaning, there are few things that do not directly consider for public charge, but USCIS has discretion to look at the application overall and rate it based on positive and negative factors, so in that case, they say that having private health insurance will be a positive factor.

  13. Sam S.

    It’s confusing. I am a green card holder and I am on Medicaid, and I applied for naturalization 4 months ago. Will this rule impact my situation? Am I included in this?

  14. Troy

    Hi there,

    After reading your article I then went to the official government federal register to read up on it as I found what you reported about the ACA/Obamacare to be different to what other news outlets are reporting. Please specifically go to page 41837 where public comments are addressed, specifically on Tax Credits. They state…
    “DHS has decided not to
    consider ACA subsidies or health
    insurance received through the health
    insurance marketplace outside of
    Medicaid as public benefits in the
    public charge inadmissibility
    determination”
    They do say that private Heath insurance not subsidised by the ACA is considered a “heavily weighted positive factor”.
    Your determination is misleading, especially since you stating that ACA subsidies will be considered a public charge which is completely false. They are not and that is stated plain and simply by DHS. Please refer to the public charge section on the USCIS website for reference and then adjust your article so you don’t mislead and scare people into cancelling their health insurance due to false reporting.

    1. administrator
      Kumar

      Troy, Thank you so much for pointing it out. It was an honest mistake, not done with any intention…Got lost reading through 877 pages.
      I have fixed it. Appreciate your time to help and raise it ! It helps everyone get right information and not be misguided.

      1. Satya

        Does federal rebates and state refunds for electric car purchases count towards public charge? Believe not, after reading above, but still wanted to double check. Thanks.

  15. ashok12

    currently i have taken insurance via obamacare or ACA but i am not availing any premium tax credit and paying full premium amount. Do i need to worry about new rule?

    1. administrator
      Kumar

      No need to worry. Obamacare premium tax credits do not count for public charge. But, having private insurance will help weigh in as positive factor for overall application and determination. Read above article, it is clarified.

  16. Tonya McAllister

    I been married 2 years and still unable to get my husband to the United States I have health issues and don’t know what to do

    1. administrator
      Kumar

      Sorry to hear…Reach to an agency that helps with family immigration or any national immigration organization, they may be able to help.

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