New fact sheets will help education and skills advocates prepare for immigration “public charge” rule

By Amanda Bergson-Shilcock, October 11, 2019

National Skills Coalition is releasing two new fact sheets to assist adult education, community college, and other skills advocates in preparing for the imminent implementation of the immigration “public charge” rule. The US Department of Homeland Security (DHS) recently finalized this rule, which will make it significantly harder for millions of immigrants who are here legally to stay in the country.

Under the rule, US officials will deny green cards to individuals who are deemed likely to be dependent on the government for support. Officials will weigh a long list of positive and negative factors via a totality of circumstances test to make this determination. These include an immigrant’s age, income, English skills, educational credentials, and use of certain public benefits, among other factors.

In addition, a narrower version of the test, focusing just on public benefits usage, will be applied to non-immigrants who are living in the U.S. and seeking to extend or change their visa type (e.g. from a student visa to an employment visa).

The rule was due to take effect on October 15, 2019, although a New York federal judge has put the rule on hold.

NSC opposed this rule, which hurts our nation’s efforts to build a skilled workforce. (See our public comment against the rule from December 2018.) With record low unemployment, businesses are struggling to fill open positions, particularly for middle-skill jobs. Immigrants, who account for one in six U.S. workers, are essential to closing this skill gap. But the rule will undercut immigrants’ ability to access training for middle-skill jobs. The rule will also create substantial additional burdens on adult education and workforce training providers trying to help their participants comply with its provisions.

The bottom line for skills advocates

These are the key points that skills advocates should be aware of regarding the public charge rule:

  • Participating in education and workforce programs will NOT count against immigrants in the public charge test. Individuals should feel free to continue participating in adult education, higher education, and other workforce training programs. Participating in programs funded by the Workforce Innovation and Opportunity Act (WIOA) or receiving Pell Grants will NOT be counted against immigrants, and can actually improve their ‘totality of circumstances’ by improving their education and skills.
  • Education and workforce programs may nevertheless see a drop in enrollment due to a chilling effect. Even before the final public charge rule was announced, many types of programs serving immigrants had already seen a drop in participation due to confusion and fear. This occurred despite the fact that participating in education and training programs does not count against immigrants in the public charge test, and despite the fact that many individuals (such as refugees) are exempt from the public charge test altogether. Given the high levels of media coverage and the complexity of the new rule, it is anticipated that this chilling effect will continue.
  • The new rule creates difficult choices for adult learners and jobseekers. While education and training programs themselves are not included in the list of public benefits that count against immigrant applicants, many participants in training programs depend on other benefits that are counted against them — such as SNAP or Medicaid — to be able to persist and complete their education. As a result, adult learners and jobseekers are now faced with the difficult decision of whether to dis-enroll from health and nutrition programs and jeopardize their ability to complete their training, or to stay enrolled in the programs and potentially jeopardize their immigration status.
  • Education and workforce providers will face numerous new requests for enrollment documents, transcripts, and other proof of participation. As part of the new public charge rule, immigrants who are applying for green cards are now required to submit a new federal form, the I-944 Declaration of Self-Sufficiency. (See form and instructions.) This document requires applicants to submit transcripts and other documents demonstrating their educational attainment, occupational skills and credentials, and English proficiency. Organizations will begin receiving requests for these documents from their current and past students and participants starting immediately. Organizations that do not typically issue such documents will be asked for a letter to that effect.
  • End of “bright line” standard will greatly increase demands on service providers. The new rule removes a clear, bright-line standard for when an immigrant may be considered a public charge, and replaces it with a highly complex, multi-faceted and subjective test. This increased complexity will make it difficult for education and workforce providers to provide straightforward guidance to frontline staff about how to advise participants on whether using a public benefit may jeopardize their immigration status. Higher education institutions, nonprofit organizations, and state and local agencies will also face the challenge of updating enrollment forms, software programs, and other documentation that currently provides blanket reassurance to participants that enrolling in publicly funded programs will not jeopardize their immigration status, and substituting a much more nuanced and complicated disclaimer.
  • Education and workforce providers will need to provide training for their staff members on how to respond to inquiries about public charge issues. Staff members should not attempt to provide legal advice to immigrants, but should be prepared to answer general inquiries, to reassure immigrants about their continued ability to participate in education and workforce programs, and to refer individuals to reputable legal services providers for additional guidance.

It is important to note that the public charge test pertains to benefits received by individuals. Funds that are received by institutions – such as community colleges that blend TANF or SNAP dollars with other funds to support an educational program – are not counted against immigrant participants in those programs, unless those individuals have filed an individual application for public benefits.

National Skills Coalition urges skills advocates to read and share our new fact sheets on the public charge, designed for adult educators and higher education advocates.

To learn more about the rule, read NSC’s analysis below. NSC’s analysis of this complex, 837-page regulation focuses specifically on issues relevant to skills advocates. For broader analysis, we recommend materials from the National Immigration Law Center and its partners in the Protecting Immigrant Families campaign.

What is the public charge?

Public charge is the standard by which individuals can be denied lawful permanent resident (green card) status or otherwise forbidden from extending or changing their visas if they are determined likely to be dependent on the government for support. The public charge is a totality of circumstances test, in which federal officials weigh the positive and negative factors in an individual immigrant’s application and determine whether they are at risk of becoming a public charge. Before this new rule was enacted, the old public charge policy had been in place for decades. It was a much narrower rule with a clear, bright-line standard that was easier for immigrants and advocates to comprehend and navigate.

The public-charge test is a forward-looking test that will be applied to immigrant applicants beginning on October 15, 2019 if it is not enjoined by the courts. Use of public benefits before that date will not be counted against immigrants unless it is one of the two types of benefits that had been included in the longstanding public charge definition in effect since 1999 (cash assistance or long-term institutionalization at public expense).

Understanding the major changes under this new rule

DHS has made significant changes to the previous public charge policy. Among the key changes:

1. More people are now subject to the public charge test. Previously, individuals were subject to the public charge determination when applying for lawful permanent resident (“green card”) status, or when existing green card holders were being readmitted to the US after more than six months outside the country. Under the new rule, people will continue to be subject to the public charge test in those cases. In addition, individuals living in the United States will face a narrower test — focusing just on public benefits usage — when they apply for, extend, or change the category of any one of a long list of non-immigrant visas. This also means that the same person might be subject to the public charge test on multiple occasions, as it is very common for individuals to extend or change their status repeatedly. For example, someone might arrive in the US on a student visa, then later change to an employment visa, and eventually become a permanent resident.

2. The factors that are considered in the totality of circumstances assessment have been further codified. While the general list of factors to be considered in the totality of circumstances test was already codified in statute, the final public charge rule has now fleshed out those with substantially more detailed considerations, including a requirement that immigrants provide their credit history and credit score (if they are available).

Factors now include:

  • Age (between 18 and 61 is a positive factor; below age 18 or age 62 and over is a negative factor)
  • Health (e.g., if the individual has a health condition that could require extensive treatment in the future, or that could affect their ability to work, attend school, or care for themselves, and if they do not have access to private health insurance or other resources to pay for treatment, it will be weighed as heavily negative)
  • Family status (i.e., household size)
  • Income, assets, and financial status (having income below 125 percent of Federal Poverty Guidelines is a negative factor; income above 250 percent of FPG is a heavily weighted positive factor; other considerations include the immigrant applicant’s assets and liability; credit history and credit score; whether they have applied for or received a public benefit; received a fee waiver when applying for an immigration document; and more)
  • Education and skills (considerations include recent history of employment; credential attainment at HS diploma or higher level; occupational licensure; English skills; and other language skills)
  • Affidavit of support from a person who is sponsoring the immigrant (if required to be filed)

3. More kinds of benefits are now counted as negative factors in the public charge test. Under previous policy, only two types of public benefits usage counted against immigrants: receiving cash assistance or receiving long-term institutional care at public expense. DHS has significantly expanded that list, which now includes:

  • Any Federal, State, Local or Tribal cash assistance for income maintenance, including TANF, SSI and general assistance programs
  • Medicaid (with exceptions including coverage for emergency services, children under 21 years old, pregnant women and 60 days of post-partum services)
  • Supplemental Nutrition Assistance Program (SNAP, formerly called “food stamps”)
  • Federal Public Housing, Section 8 housing vouchers and Section 8 project-based rental assistance

Non-cash benefits that are wholly state-funded are not considered in the public charge test.

(Benefits received by family members of the immigrant applicant do not count. However, the size of an immigrant’s household – including people who may not be physically living with but are financially dependent on the immigrant – will still influence many of the calculations for the public charge test.)

4. The process of calculating public benefits usage is now more complicated. Under the new rules, receiving any of the above-listed public benefits for more than 12 months in any 36-month period is a heavily negative factor. If an individual is receiving two benefits in a given month, that will count as two months for the purposes of the public charge calculation.

5. The ripple effect of the new rule will be felt far beyond the immigrants who are personally subject to the public charge test. For example, an individual already living in the US who is applying for a green card may have a US citizen spouse; if federal officials deny the green card application because the applicant is at risk of becoming a public charge, the couple may be faced with a difficult decision about whether they can continue their lives together in the United States, or must move abroad or be separated.

Similarly, immigrants who are themselves already green-card holders or US citizens may be hoping to sponsor a family member to immigrate to the US in the future. These individuals will likely have questions about how the public charge rule will affect their future plans; they should be referred to a reputable legal services provider for advice.

6. A new “public charge bond” process is being implemented to allow individuals to override their negative public charge determination. DHS has established a complex new process to allow individuals who are at risk of becoming a public charge to purchase a bond that enables them to be admitted to the United States, but only at the discretion of the DHS official processing their application. The minimum cost of the bond will be $8,100 plus fees; the immigrant will forfeit the entire value of the bond if they use public benefits in the future. Much remains unknown about the bond process, but its existence adds an additional layer of financial pressure for immigrant applicants.

Benefits that do NOT count against immigrants

Only the benefits specified in the rule will count against immigrants in the new public charge test. Thus, other benefits will NOT count. These other benefits include:

  • Social Security retirement benefits
  • Medicare benefits
  • Worker’s compensation
  • Non-cash benefits that provide education, child development, and employment and job training (even if funded by TANF)
  • Education-related benefits
  • Any exclusively local, state, or tribal public benefit that is not cash assistance for income maintenance
  • Benefits used by persons other than the applicant, including benefits used by their children

Individuals exempt from the public charge test

Some categories of immigrants are not subject to the public charge test.

  • Active duty and reserve US military service members and their spouses and unmarried minor children
  • Refugees, people who have been granted asylum, individuals receiving U visas for crime victims or T visas for trafficking victims
  • Violence Against Women Act (VAWA) self-petitioners
  • Select other categories of vulnerable individuals
  • Family members of the immigrant applicant (unless and until they make their own applications for green-card status, visa extensions, or changes of status)

In addition, individuals are not subject to a public charge test when they apply for US citizenship.