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DHS to bar millions of immigrants on public charge issue

Redefinition of public charge and public benefits could cause refusals of applications for immigrant visas and permanent residency outside and inside the U.S.

Crispin ArandaOriginally posted on August 14, 2018; updated August 14, 2018

DHS to bar millions of immigrants on public charge issue

DHS Propose Rule on Public Charge

“The times, they are a-changing” and “In life, the only thing permanent is change.”

The thoughts may be continents apart, (Bob Dylan and the Holy Book of Hindus) but convey the same message to immigrants in and outside the United States of America.

Don’t come in unless you are at least a high school graduate and can speak, read, write and listen in English.

In March this year, Department of Homeland Security (DHS) spokeswoman Kate Waldman announced proposed changes to welfare reform law "intended to protect the American taxpayer by ensuring that foreign nationals seeking to enter or remain in the U.S. are self-sufficient."

A proposed rule was supposed to codify this intent on July 16, 2018, as reported by the Washington Post.  Yet, the proposal has already scared immigrants in the U.S. and terrifies millions more outside America.

The rule focused on public charge issues and how immigrants in the U.S. seeking to adjust their status to permanent residents or those outside the U.S. applying for immigrant visas could be determined inadmissible for being or becoming beneficiary of public benefits.

Specifically, the addition of a proposal to penalize immigrants who (or their dependents) have used public funds or benefitted from cash or non-cash programs, including access to subsidized healthcare (the Affordable Care Act – ACA- labeled Obamacare) has been a matter of serious concern from among the immigrant communities in the U.S.

This despite a study published in the International Journal of Health Services released this month stating that immigrants pay more into the health-care system than they receive.  The researchers wrote that “immigrants account for 12 percent of the population but only account for 8.6 percent of total U.S. health-care expenditures while U.S.-born individuals account for 90 percent of the population but 93 percent of expenditures.

Threat is working

The spectre of being considered deportable for becoming public charge under the proposed rule, or their family members be refused adjustment of status or immigrant visa applications, has stopped immigrants from applying for federal government programs.

The Washington Post reported that Dr. Benard Dreyer, a past president of the American Academy of Pediatrics disclosed many of his patients were not signing up for food stamps or for infant formula through the Women, Infants, and Children (WIC) program out of fear that it will hurt their chances of staying in America.

The Post continues: “Dreyer, who works at Bellevue Hospital in New York City, estimated about 90 percent of his patients are immigrants. He and the other pediatricians are currently discussing how to best communicate to their patients that no policy has changed yet and there's more potential damage if they don't get, for instance, proper nutrition for their children or routine immunizations.”

Some of Dreyer’s patients would not want to sign their kids up to preschool even though universal pre-K is not a means-tested program, (because) the fear is pervasive."

Finally an August report from the New England Journal of Medicine said “that the number of immigrants who wouldn't access  Medicaid and the Children's Health Insurance Program (CHIP) because of the policy would result in at least one million people becoming uninsured.”

That could be counted as a million less immigrants taking advantage of America’s generosity.

The Trump administration might already have declared a victory on this front by tweaking the law since new legislation on immigration reform is not forthcoming with the Republicans divided (despite having majority of both Senate and House of Representatives) and the Democrats not willing to push an immigration law that does not include legalization and pathway to citizenship for DACA beneficiaries and retaining legal migration numbers.

Public Charge Law through the years

On August 3, 1882, the first federal immigration laws excluded from entry into the country “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.”

If the alien becomes a public charge within a year of arrival, he or she is deemed to be in violation of law and was to be returned to the source country or point of departure by the person or persons, vessel, transportation company or corporation who brought the alien into the U.S.  in 1891 the category was expanded  to  include “any person likely to become a public charge.”

In 1903, the law further stipulated that any foreigner who became a public charge within five years of entry was subject to deportation.

The Immigration and Nationality Act of 1952 excluded aliens who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charges.

In 1986, the Immigration Reform and Control Act included provisions on how applicants for legalization may be considered inadmissible for being or could become public charge.  In 1990, the public charge provision officially became part of the immigration laws as Section 212(a)(4) of the immigration and Nationality Act (INA).

Public charge was expanded in 1996 under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

The two 1996 laws declared that aliens (1) generally should not depend on public resources and that these resources should not constitute an incentive for immigration to the United States (PRWORA),  commonly known as the 1996 welfare reform law and (2) a sponsor must submit a legally enforceable Affidavit of Support to ensure that the alien (and declared family members) will not become public charge (IIRIRA).

Democrats are pouncing on this possibility following the uproar over now-ended separations of thousands of migrant families at the border under Trump's "zero tolerance" immigration policy.

The executive orders from the Trump administration and the perceived pattern of anti-immigrant rhetoric and policies have resulted in a drop in number of immigrants seeking healthcare. In a national poll of providers, the Migrant Clinicians Network reported that “two-thirds of the respondents said they had seen such a ‘chilling effect’ among patients. Clinics across the country that serve an immigrant population have reported significant downturns in appointments and up ticks in no-show rates related to fear of persecution.”

In June, Minnesota Gov. Mark Dayton (D) wrote the White House Office of Management and Budget echoing those findings in the state.

"Sadly the rule is already having an effect, regardless of the fact that it has yet to be released, social service providers in Minnesota report that just the prospect of this draft rule has begun causing children and adults to fear accessing safety net programs," Gov. Dayton lamented.

What DHS Proposes for the Public Charge Rule

DHS seeks to address these issues, among others, through this rulemaking.

DHS intends to establish the proper nexus between public charge and receipt and use of public benefits by defining the terms “public charge” and “public benefit” among other terms.

DHS proposes to interpret the minimum statutory factors involved in public charge determinations and to establish a clear framework under which DHS would evaluate those factors to determine whether or not an alien is likely to become a public charge.

DHS also proposes to clarify the role of a sponsor’s affidavit of support within public charge determinations.

DHS also proposes that certain factual circumstances would weigh heavily in favor of determining that an alien is not likely to become a public charge and other factual circumstances would weigh heavily in favor of determining that an alien is likely to become a public charge.

The purpose of assigning weight to certain factual circumstances is to provide clarity for the public and immigration officers with respect to how DHS would fulfill its statutory duty to assess public charge admissibility. Ultimately, each determination would be made in the totality of the circumstances based on consideration of the relevant factors.

In addition, DHS proposes that for applications for adjustment of status, the alien would be required to submit a Form I-944.

DHS also proposes the establishment of a public charge bond process in the immigrant visa and adjustment of status context, and proposes to clarify DHS’s use of discretion in nonimmigrant extension of stay and change of status applications.

Public Charge Under section 212(a)(4) of the INA, 8 U.S.C. 212(a)(4)

Current Inadmissibility

Proposed Rule for Inadmissibility


Public charge - An alien who is “likely at any time to become a public charge is inadmissible.”


Public charge - A person who uses or receives one or more public benefits as defined in this rule.



Dependency. One who is likely to become (for admission/ adjustment purposes) primarily dependent on the government for subsistence as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.



Dependency. Retaining the 50 percent threshold or lowering the threshold to some percentage less than 50 percent. A public charge is one who is supported at public expense, i.e., one who uses or receives public benefits.


Dependent – only those accompanying or following to join within six months are counted as derivative beneficiaries and part of the household members were petitioner will reside.

A separate Form I-864 is required for them when

they apply for their immigrant visas.


Dependent - person listed as a dependent on the

alien’s most recent tax return; any other individual whom the alien is legally required to

support; or any other individual who lives with the alien, and who is being cared for or

provided for by the alien, and benefits from but does not contribute to the alien’s income

or financial resources, to the extent such person is not claimed on the alien’s tax return.


Public benefit – Receipt of public cash assistance for income maintenance; or Institutionalization for long-term care at government expense. Public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care (but not short term care)– such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations.



Public benefit as any government assistance in the form of cash, checks or other forms of money transfers, or instruments and non-cash government assistance in the form of aid, services, or other relief, that is means-tested or intended to help the individual meet basic living

requirements such as housing, food, utilities, or medical care.

 Focuses on individual receipt of benefits based on means-testing or with the intention of fulfilling basic human needs, rather than forms of government assistance that are provided to the

public more generally.



Nonimmigrants applying for extension of stay or change of status – not subject to public charge rule.

Nonimmigrants applying for extension of stay or change of status - require an applicant for an extension of stay or change of status to demonstrate that he or she is not using or receiving, nor likely to use or receive, public benefits as defined in this proposed rule.



Documents to ensure compliance of not being public charge – Affidavit of Support with latest federal tax return, W2 and evidence of employment.

 Effectivity. An affidavit of support is legally enforceable; the sponsor's responsibility usually lasts until the family member or other individual either becomes a U.S. citizen, or can be credited with 40 quarters of work (usually 10 years).


Documents to ensure compliance of not being public charge – In addition to AOS, require a minimum bond amount of $10,000 as public charge bond, (adjusted annually for

inflation), limit the circumstances in which a public charge bond will be cancelled, as

well as establish specific conditions under which a public charge bond will be breached.

 Authorized issuers. Underwriters must be authorized by Department of Treasury.

 Effectivity. A public charge bond must remain in effect until the alien naturalizes, permanently departs the United States, or dies, or until the bond is substituted with another bond


Individuals Affected by the Rule

In 2016 alone, the Department of Homeland Security reported 1,183,505 immigrants were admitted and granted permanent resident status.

Of this number, 1,012,083 were beneficiaries of Family-sponsored visas, diversity visas and refugee admissions.

Future immigrant visa applicants will be joined by nonimmigrants who are targeted to be

Considered for visa and application refusals under the proposed ruled.  The table (also from USCIS) shows the potential nonimmigrant population to be affected.

Applicants for Extension of Stay, Change of Status 2012-2016


Fiscal Year
































5-yr average





Stay tuned.

Authors & Contributors

Crispin Aranda

Crispin Aranda

Crispin R. Aranda is an established International Visa Conselor and Immigrant Advocate. He is the president of IVC and is in several migration radio programs.

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