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  • September 24, 2019

    Tip of the Month
    Public Charge: New Department of Homeland Security Rule

    A new Department of Homeland Security rule is causing many immigrant families to be fearful about using public benefits they qualify for. Megan Sprecher discusses the rule and its impact in the Tip of the Month.

    Megan L. Sprecher

    On Aug. 14, 2019 the U.S. Department of Homeland Security (DHS) published a final public charge regulation. This rule, effective Oct. 15, 2019, applies to people applying to adjust their status (get a “green card”) or change or renew their status from within the United States.

    The rule is not retroactive. A different rule governs public charge assessment for people who apply for their green card or admission from a U.S. Consulate outside the U.S.

    Impact of DHS Rule

    The publication of the new rule is causing many immigrant families to be fearful that continued use of public benefits will negatively impact their current or future immigration status.

    Megan Sprecher Megan Sprecher, St. Thomas 2007, is an immigration and poverty law attorney with End Domestic Abuse Wisconsin in Madison.

    Groups like the Wisconsin Collaboration on Immigrants and Public Benefits are working to ensure that immigrant families have the resources and information they need and access to reputable free and low-cost immigration legal services to get accurate information on public charge before making any decisions on lifesaving benefits.

    What is Public Charge?

    Being determined “likely at any time to become a public charge” in the future makes someone inadmissible (i.e., unable to gain a green card or admission to the U.S.).1

    Who is Exempt from Public Charge?

    Many immigrants are exempt from the DHS public charge rule, including refugees, asylees, special immigrant juveniles, U and T Visa recipients, Violence Against Women Act self-petitioners, and other protected groups. These groups can safely use public benefits without it negatively impacting their immigration status.

    New DHS Rule: Totality of Circumstances

    The new DHS rule makes anyone inadmissible that DHS deems likely in the future to receive one or more public benefits specified in the new rule for more than 12 months in the aggregate during any 36-month period (note: receipt of two benefits in one month counts as two months).

    The test is forward-looking; the officer will use a “totality of circumstances” test to determine if the applicant is likely to become a public charge in the future. The factors that DHS will include in the totality of circumstances assessment are:

    • age;
    • health;
    • family status;
    • assets, resources, and financial status (including applicant’s past use of specified public benefits);
    • education and skills; and
    • affidavit of support.

    New DHS Rule: Public Benefits Use

    The new DHS rule expands the list of public benefits taken into consideration in the public charge assessment to include those previously included and those newly included.

    Previously included are:

    • Supplemental Security Income (SSI);
    • Temporary Assistance for Needy Families (TANF)/W2;
    • state or local general relief or general assistance; and
    • institutionalization for long-term care.

    Those newly included are:

    • Supplemental Nutrition and Assistance Program (SNAP)/FoodShare;
    • Medicaid/BadgerCare (exception for coverage for youth under 21 and pregnant women up to 60 days postpartum);
    • Section 8 Housing Choice Voucher Program;
    • Section 8 Project-based Rental Assistance; and
    • public housing.

    The new DHS rule only looks at the applicant’s past use of public benefits, not the applicant’s family or household members’ use of benefits.

    The new rule does not apply to people who already have their green card or people applying for U.S. citizenship.

    Legal Challenges

    At least six different federal lawsuits are in process, including one that requested either a delay in implementation of the final rule or a nationwide injunction.


    Many free and low-cost immigration legal services providers in Wisconsin are available to consult with immigrants who are concerned about the impact of the new DHS public charge rule and their family’s ability to continue to safely receive public benefits.

    For up to date information on public charge, visit:


    1 Immigration and Nationality Act sec. 212(a)(4), 8 U.S.C. 1182(a)(4).

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    Public Interest Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Jacob Haller and review Author Submission Guidelines. Learn more about the Public Interest Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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