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Legal Notes: The “Public Charge” Rule Expansion and Its Impact on Immigrant Families

Jan Stiefel, Senior Supervising Attorney, Elder Law Project, Community Legal AidJan Stiefel, Senior Supervising Attorney, Elder Law Project, Community Legal AidThe federal government has proposed to change how it makes public charge determinations beginning with immigration applications filed on or after October 15, 2019.  “Public charge” is a term used to describe a test used by immigration officials to decide whether an immigrant will probably depend on government benefits in the future.  The determination about whether someone is likely to become a public charge is used to make decisions on applications for admission or continued stays in the U.S., including applications from immigrants seeking “green cards” (Lawful Permanent Resident or LPR status) based on a petition by a U.S. citizen or permanent resident family member.  Previously, if someone received certain public benefits such as Supplemental Security Income (SSI) or long-term care benefits, it could affect certain immigration applications. With the expansion of the public charge rule, the receipt of a longer list of benefits, as well as the applicant’s age and health, will be factored into the determination of whether the person is likely to become a public charge.  The rule change expands the public benefits programs which could affect one’s application to include non-emergency Medicaid benefits (MassHealth in Massachusetts) (with an exception for pregnant women and children), federal rental assistance (such as Section 8 and federal public housing), Supplemental Nutrition Assistance Program (SNAP/Food Stamps), and all cash assistance, including state benefits. Legal challenges to these changes are underway but their outcome is unknown. 

With the expansion of the public charge rule, the receipt of a longer list of benefits, as well as the applicant’s age and health, will be factored into the determination of whether the person is likely to become a public charge.

One impact of this expanded definition of “public charge” is that it may discourage non-citizens from seeking public benefits to which they or their U.S. citizen children may be legally entitled, including those which may not even be counted in the public charge test.   Medicare, coverage through the Health Connector, including ConnectorCare, Health Safety Net, MassHealth Family Assistance and Limited (Emergency Medicaid) are not counted in the public charge test. Use of food pantries, WIC, and school meals also does not count.  

A person who has refugee, asylee, or another humanitarian status is not subject to the public charge test and benefits received while in any of these statuses will not be counted against them.  A person with a green card who is applying for citizenship (“naturalizing”) is not subject to the public charge test. A person renewing a green card is also not subject to the public charge test.  However, a person with a green card considering travelling outside the United States for six months or more may want to get advice from an immigration attorney before departing, as they may be subject to a public charge test upon their return.  If you aren’t sure whether this policy could impact you, you may want to seek advice from an attorney. Immigrants applying for or receiving public benefits who are concerned about the rule may contact CLA at 1-855-252-5342 or at communitylegal.org/get-help/how-get-help.  Further information is also available at masslegalservices.org/publiccharge.

The views expressed in this column represent general information.  To address your particular and specific needs consult your own attorney.  If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311.  Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, at massnaela.com or 617-566-5640. Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits as well as tenants’ rights.  A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online by visiting communitylegal.org.