How Does Receipt of Public Assistance Affect My Application for an Adjustment of Status (AOS)?
Kevin Swartz • February 4, 2022
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The answer to this question changed considerably after President Biden rolled back some of former President Trump’s harsh immigration policies. In 2019, Trump had issued an executive order known as “The Public Charge Final Rule,” which caused the receipt of most public assistance programs to negatively impact AOS applications, and with few exceptions (e.g. emergency services and Medicaid recipients who were pregnant or under the age of 21).
Under the current administration, your receipt of public assistance may continue to negatively affect your AOS petition, but only under limited circumstances. It depends on 1) what your current immigration status is; 2) the type of public assistance you are receiving; and 3) what your personal circumstances are.
If your current immigration status is that of asylee or refugee, then your past or current receipt of public assistance will generally not affect your application for adjustment of status (AOS). If you are not an asylee or refugee, the following applies.
With respect to the type of assistance received, United States Customs and Immigration Services (USCIS) will evaluate whether your past or current receipt of public assistance indicates that are likely to become a “public charge,” meaning someone who is primarily dependent on the government for subsistence. Your application will be denied if, at the time of your application, USCIS finds that you are currently a public charge or will likely to become a public charge at some point in the future.
In making its determination, USCIS may consider only certain factors, however: the extent to which you relied on 1) public assistance for income maintenance; and 2) whether you have required long-term care in an institution at the government’s expense. The following types of public assistance fall within the first category (public assistance for income maintenance) and will negatively affect your application in certain situations:
- Supplemental security income (SSI);
- Temporary Assistance for Needy Families (TANF) cash assistance; state and local cash assistance programs that provide benefits for income maintenance (often called ‘general assistance’ programs);
- Programs to support applicants who are institutionalized for long-term care, e.g. in a nursing home or mental health institution)
The longer you rely on cash assistance or institutional care listed above, the more heavily USCIS will weigh it against your application. But, even if you have relied on one of the public assistance programs listed above, or required long-term institutional care for a period of time, USCIS may not necessarily deny your AOS application. USCIS is required to evaluate this information within the context of the totality of all your personal circumstances. Your personal circumstances include many different factors, including but not limited to: your age, health, family situation, financial status, the resources available to you, education, and vocational skills.
If you received non-cash benefits (other than institutionalization for long-term care) or special-purpose cash benefits that were not for income maintenance, USCIS will not weigh that against you. The following is a non-exhaustive list of non-cash benefits that will not negatively affect your application:
- Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases;
- Use of health clinics, short-term rehabilitation services, and emergency medical services (other than support for long-term institutional care;
- Children’s Health Insurance Program (CHIP);
- Nutrition programs, including food stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs;
- Housing benefits;
- Child care services;
- Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
- Emergency disaster relief;
- Foster care and adoption assistance;
- Educational assistance, including benefits under the Head Start Act and aid for elementary, secondary, or higher education;
- Community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
- State and local programs that are similar to the programs listed above
How will my AOS application be affected if my family member is the one who is receiving public assistance, not me?
If your family member currently or previously relied on public assistance, but not as their sole means of financial support, USCIS will not weigh that benefit against you in evaluating your application. But if your family member currently or previously relied on public assistance as their sole means of financial support, then USCIS will make a case-by-case determination. They will evaluate your family member’s public assistance along with the totality of your personal circumstances to determine whether you are likely to become a public charge at some point in the future.
Can Trump’s old policy be reinstated if Biden loses the next election?
While it is very possible that the next republican administration may reject Biden’s current policy and once again disfavor AOS petitions from public assistance recipients, such a change will unlikely apply retroactively to AOS petitions filed during the current administration. Trump’s 2019 executive order, the “Public Charge Final Rule” applied only to applications that were filed on or after that executive order went into effect. Therefore, assuming the next Republican administration reissues the same executive order as Trump’s 2019 “Public Charge Final Rule,” that change will apply only to those petitions filed after that executive order is reissued.
This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.
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