Public Charge Rule Impact for F1 - F2 - OPT and STEM OPT Students

New Public Charge Rule Impact for F1 Students, F2, OPT, STEM OPT?

In F1 Visa by KumarUpdated : 19 Comments

Trump administration published the final version of the new ‘public charge rule’ officially called as “Inadmissibility on Public Charge Grounds” that is expected to have significant impact on most types of US visa holders and future Green Card Applicants. USCIS announced that Public Charge rule is effective from Feb 24th, 2020 after judgment from Supreme Court in favor of implementing the rule. We have published an article with the summary of Public Charge rule, its Impact for H1B, H4, L1, L2 visa holders. In this article, we will focus on the new “public charge rule” impact to F1 Students studying in US, OPT and STEM OPT holders working after graduation and address common FAQs on the same.

We will not cover any basics or summary of the public charge rule in this article. We will directly dive into its impact to F1 students. If you do not know what ‘Public Charge Rule’ stands for, how someone is determined as public charge, please read Public Charge Rule Summary, Impact to H1B, H4, L1, we have covered all the details in that article.

The general public charge rule is that, if anyone, unless exempted, uses any of the listed public benefits in the new rule 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.

Now, let’s start with basics for students, does it really apply to F1 Students? What does the final rule say?

Public Charge Rule Applicable to F1 Students, F2 Dependents for Extensions, COS ?

Yes, the ‘new public charge rule’ applies to F1 students, see below screenshot from the official final rule text. It clearly tells that F1 students and F2 depends are subject to the public charge review condition, when they apply for extension or change of status using for I-539 form. 

Public Charge Rule - Applicable to F1 Students and F2 Dependents

Also, during the F1, F2 visa stamping at consulate, the consular officer determines, if the F1 or F2 would become a public charge. They may look at F1 visa, F2 applicant’s bank statements, assets, etc. to verify that you have funds to support your education, support dependents, if any. They can deny your visa under INA section 212(a)(4) on public charge.  Check Travel.State.gov Denials info

Now, let’s look at the impact of the new public charge rule and what it means for F1 status holders, F2 visa holders.

Impact of New Public Charge Rule for F1 Students, F2 Dependents

The final rule lists down few scenarios where the public charge rule would be applicable for F1 Students and F2 dependents. Below is the list:

F1, F2 Visa Extensions, Change of Status (COS) Applications:  

USCIS will look for proof of sufficient funds during Change of Status to F1 or Extensions filed ( due to re-instatement or if have date specific admission) using form I-539 . This is not new, USCIS always checks for the financial support documents for amount on I-20 to prove that students have funds to support their education and living expenses.  In addition, with the new public charge rule, now they will also check if the student has not used any of the public benefits for aggregate of 12 months during the last 36 months of their F1 status to determine, if they would become a public charge. DHS emphasized and clarified a comment raised by users saying that students can only work 20 hours and they cannot show proof of self-sufficiency with the money they make, stating that it is responsibility of the student to prove that they have enough funds. See below text from rule document.

Public Charge F1 Students Extensions and Change of Status

Employment History for F1 Students  :

 There were comments saying that Students may not work and they will not have employment history and may be considered for public charge during COS to work visa like H1B or even applying for adjustment of status. USCIS clarified that they do NOT require a student to have employment history to determine for public charge. They clarified that students would acquire skills and that will help them in the overall application and be a positive factor and employment history is not the only factor they look at, they look at education and skills factors that will be positive. See below text from rule document.

DHS Requirement for Employment History - Education Skills for Public Charge Determination

250 Percent FPG for F1 Students  :

There were comments saying that 250 percent Federal Poverty Guidelines (FPG) for F1 students , F2 is very hard to meet for many couples planning to use adjustment of status and many job positions do not even help get to get that level as they graduate. USCIS clarified that 250 percent FPG is not a requirement but is one of the considerations.  They primarily look for the public benefits usage in the last 36 months.  See below rule text.

DHS F1 Student Marriage based green Cards - Public charge 250 FPG Ruling

Cost to  US Employers, Labor Market Composition : 

Some commenters expressed concern that the search cost for US employers would go up as they will no longer be able to hire low wage workers to meet the FPG limits and they will have to do their own public charge determination with the wage. Also, they say it will change labor market composition and they would have challenges for COS for F1 students to H1B or doing adjustment of status with the new rule.  DHS clarified that this rule is not intended to change the labor composition, all of them can still file COS, adjustment of status applications and this public charge rule primarily looks at the public benefits used in the last 36 months to determine, if they would be a potential public charge.

New I-539 Forms for F1 Students with Questions on receipt of Public Benefits:

USCIS has released new forms for I-539 that is used by F1 and F2 visa holders for extensions and Change of status. It has new questions that are related to receipt of public benefits. The F1 and F2 holders need to prove that they have not used the public benefits for over 12 months in a 36 month period. Also, if requested, 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 as needed. Read detail article on How USCIS uses Form I-944 to determine Public Charge based on various factors.  If using I-539A form, that is used by I-539 co-applicants they need to answer related questions for the same.

OPT, STEM OPT Holders working on F1 Visa :

There is no explicit mention of the OPT or STEM OPT programs and determination of public charge. Basically, OPT and STEM OPT students fall under F1 Students category and all the above listed aspects apply to them as well. They should not use any public benefits for a period of aggregate 12 months in a period of past 36 months.

FAQs for F1 Students on Public Charge Rule:

In-state tuition benefit due to TA, RA, or GA, does that count for public charge  ?

No, USCIS does not list in-state tuition as a public benefit, so it does not constitute for public charge determination. Also, in general, funding of TA, RA and GA position would pay for it in background, so, it is not really a public benefit.

Using Subsidised School Health Insurance, does that count for public charge  ?

No, USCIS does not list explicitly list subsidised health insurance used by F1 students as a public benefit. 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.  

Using Health Centers/ Clinics in University, does that count for Public Charge ?

No, you would have paid for them as part of the University fee and it does not count as public benefit to determine as public charge.  

What do you think of the impact of Public Charge Rule to F1 and F2 Students ? Share your thoughts, comments

   

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Comments ( 19 )

  1. Brian Du

    Hi,

    I’m an international student holding F1 visa currently, and my spouse is currently holding H1B visa. We live in New York city. I’ve started using Medicaid since 2016, and now I want to change my status to H4. Since the effective date for the new I-539 from is Feb 29, 2020. So does it mean that technically anyone (who has received Medicaid as the ONLY public benefit) should be fine to file I-539, and NOT considered as public charge as long as they stop using that benefit now? Because till now the max of time using the benefit is only less than 5 months? If that’s the case, it’s ok for me to disclose that information in I-539?

    Lastly, how exactly do I get out of Medicaid? Is there any document or online process for me to withdraw from it officially? Or I simply stop using it and get another insurance ?

    Thanks a lot!

    1. administrator
      Kumar

      Brian,
      They will look at totality of circumstances. You need to declare it, if you use it or have used it in past.
      I have no idea, how to get out. Talk to the agency that gives you medicaid. I wish I knew the insurance part, discuss with an attorney or insurance company.

        1. administrator
          Kumar

          Brian,
          They will not consider anything before the public benefits rule from Feb. You may need to declare them, if the form asks for it.

  2. frank

    I am an international student. I want to ask if I apply for the COVID 19 university emergency fund, and university give me money as a scholarship. Is that a public charge?
    This scholarship is for the life expense, not for the tuition.

    1. administrator
      Kumar

      frank,
      I am not sure, you need to check with DSO on this and clarify, if that falls under the public benefit or not.

  3. jack

    Hi
    I’m international student from burma attending master in science of finance (i20) visa. Due to covid 19 pandemic and since my country is banned ,do i have to go back my country after finishing my degree?

    1. administrator
      Kumar

      jack,
      Well, if you are already in US, it may or may not apply. If you have OPT and can work on OPT, then maybe possible. Check with your DSO.

  4. Siddarth

    Hi,

    I’m currently in the United States on F1 visa (Still in school) and my wife on F2 visa. She is currently receiving pregnancy Medicaid since November 2019. Our child is due in July 2020. I wasn’t aware of this public charge rule until today. I’m planning to apply for change of status for my wife from F2 to F1 to start grad school in Fall 2020. I read that women during pregnancy are exempt and would not be counted towards public charge. But I still wanted to check with you if I perceived this information correct. Could you please clarify this? Can she continue the Medicaid until the baby is born (Since it will be only 8 months of benefits by then) or should I cancel the Medicaid and get my own private insurance?

    Waiting for you advice. Thanks.

    1. administrator
      Kumar

      Siddarth,
      I am not an expert on this, in general, emergency medicaid is not public charge. I suggest you speak to your DSO in school and get it sorted out.
      If you can get private insurance, it would be the best thing to avoid anything that is in grey area and you are not sure, if it will be a public charge in future.

  5. Lutfun Naher

    Hi 
    I am staying in Kentucky, USA on F2 VISA from December 2016. Recently, I got admission to the University of Cincinnati for Fall 2020. Initially, I wanted to change my visa status from F2 to F1 from my home country. Due to the COVID-19 issue, now the USA and our country government have imposed a travel ban. The USA embassy in our country is also closed for an indefinite period of time. So, I am thinking to change my visa status inside the USA.
    In June 2018, I have used emergency Medicaid during the birth of my daughter. My daughter (who born here and an American citizen by birth) is receiving the SNAP benefits and medicare-health insurance from June 2018 to now (February 2020). We are planning to stop the benefits from March since the USA government published a new law about the benefits which may affect our future immigration applications.

    In this situation, do you think it would a good idea to apply for visa status change inside the USA? I am looking for an immigration attorney with whom I can discuss my case. Do you know any good law firm who has good experiences regarding this kind of scenario?

    Thanks
    Lutfun Naher

    1. administrator
      Kumar

      Lutfun,
      Your daughter receiving benefits will not have any impact on your situation as she is citizen. As per the rule, it is applicable only if you use the benefits as an Individual.
      Well, your options are to only do it in US, as you cannot go out of the country and it is risky. You only issue is to show funds for conversion, if you have that, should be fine. Unfortunately, we do not advise on law firms, but you cannot go wrong with top tier law firms like Murthy, Fragomen, etc.

  6. Joel

    If I get unemployment insurance payments during the STEM OPT period, does this count as public charge? Based on my research, it is not. But I would like to hear how other people think and understand and rules.
    Thank you very much.

    1. administrator
      Kumar

      Joel,
      Some of these are grey area…But, to your point, it is technically not coming from Federal Govt and part of your insurance that you paid for right ? If so, not a public charge…If it is coming from the listed benefits on the form, then it is a public charge.

    2. Michael

      I wanted to understand more about what Joel mentioned as well. I would like to apply for unemployment insurance, but wasn’t sure if that would be a public charge. In addition to that, I was looking to buy health insurance through the marketplace which allows me to by health insurance at a significantly lower price due to the affordable care act, but I wasn’t sure if that also counts as public charge.

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