Chapter 2 - Public Charge Inadmissibility Ground
Neither the Immigration and Nationality Act (INA) nor case law has defined the phrase “public charge.” The regulations define a public charge as an alien who receives one or more public benefits, as defined in the regulations, for more than 12 months in the aggregate within any 36-month period. “Public benefits” are defined in the regulations as an enumerated list of benefits.
B. Likely at Any Time to Become a Public Charge and Burden of Proof
An alien is inadmissible on the public charge ground if the officer is of the opinion that the alien is, at the time of admission or at the time of adjustment of status, “likely at any time to become a public charge.” Congress did not define or otherwise explain “likely at any time to become a public charge.” However, in using the terms “become” and “likely at any time,” Congress clearly indicated that the public charge inadmissibility determination is a predictive assessment that is based on factors that tend to show whether the public is likely to shoulder the burden of supporting the alien.
Therefore, the DHS regulations that define an alien to be “likely at any time to become a public charge” as “more likely than not at any time in the future to become a public charge, as defined in 8 CFR 212.21(a), based on the totality of the alien’s circumstances.”
An alien is more likely than not at any time in the future to become a public charge if it is probable that, given the totality of the alien’s circumstances, he or she will receive, at any time in the future, one or more public benefits for more than 12 months in the aggregate within any 36-month period.
This definition of likely at any time to become a public charge, however, does not alter the burden that aliens bear in demonstrating admissibility. The burden of proof to establish admissibility during the process of seeking an immigration benefit is on the applicant. An applicant for adjustment of status must demonstrate that he or she is clearly and beyond doubt admissible to the United States. 
[^ 3] Before DHS published the rule, public charge was not defined in regulations. Additionally, there is a scarcity of legislative guidance and case law defining public charge. However, the legislative history and case law have suggested a link between public charge and the receipt of public benefits. For a detailed outline of the legislative history and case law that framed the public charge definition in 8 CFR 212.21, see 83 FR 51114, 51221 (PDF) (Oct. 10, 2018) (proposed rule).
[^ 7] See, for example, Matter of Martinez-Lopez (PDF), 10 I&N Dec. 421 (A.G. 1964). See 83 FR 51114, 51178-79 (PDF)(Oct. 10, 2018) (proposed rule). See 84 FR 41292, 41392 (PDF), 41392 (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction).
[^ 9] See, for example, Southwest Sunsites, Inc. v. F.T.C., 785 F.2d 1431 (9th Cir. 1986) (“First, the FTC must show probable, not possible, deception (‘likely to mislead,’ not ‘tendency and capacity to mislead’).” (emphasis in the original)), cert. denied, 479 U.S. 828 (1986); Fermin v. Pfizer Inc., 215 F. Supp. 3d 209, 211 (E.D.N.Y. 2016) (“The term ‘likely’ indicates that deception must be probable, not just possible.”); Siderca, S.A.I.C. v. United States, 28 C.I.T. 1782, 350 F. Supp.2d 1223, 1226 (Ct. Int’l Trade 2004) (“The common meaning of ‘likely’ is ‘probable,’ or, to put it another way, ‘more likely than not.’”); In re G.H., 781 N.W.2d 438, 445 (Neb. 2010) (holding that “‘probable,’ in other words, more likely than not” satisfies the “likely to engage in repeat acts of sexual violence” standard under Nebraska law.).
[^ 10] DHS believes that defining likely at any time to mean “more likely than not” is consistent with how the DHS regulations implementing withholding of removal and deferral of removal under the Convention Against Torture have used “more likely than not” interchangeably with “likely.” Compare 8 CFR 208.16(c)(4) (“If the immigration judge determines that the alien is more likely than not to be tortured in the country of removal, the alien is entitled to protection under the Convention Against Torture.”) with 8 CFR 208.17(b)(2) (“The immigration judge shall also inform the alien that removal has been deferred only to the country in which it has been determined that the alien is likely to be tortured, and that the alien may be removed at any time to another country where he or she is not likely to be tortured.”). See generally Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (2010) (discussing the more likely than not standard in the context of the alien's burden of proof to establish his residence in the United States for purposes of INA 316(b)).
[^ 11] See INA 291. See Matter of Bett (PDF), 26 I&N Dec. 437 (BIA 2014). The burden never shifts to the government during the adjudication process. See Matter of Arthur (PDF), 16 I&N Dec. 558 (BIA 1978).
[^ 12] See Matter of Bett (PDF), 26 I&N Dec. 437 (BIA 2014). See, generally, House v. Bell, 547 U.S. 518, 538 (2006) (discussing habeas petitioner’s burden of showing ‘‘more likely than not’’ with the standard of ‘‘no reasonable juror would find him guilty beyond a reasonable doubt.’’).
10 U.S.C. 504(b) - Citizenship or residency
15 U.S.C. 1681 - Congressional findings and statement of purpose
21 U.S.C. 802 - Definitions
21 U.S.C. 841 - Prohibited acts A
22 CFR 40.51 - Labor certification
29 CFR 570 - Child labor regulations, orders and statements of interpretation
29 U.S.C. 213(c) - Child labor requirements
31 U.S.C. 9304-9308 - Sureties and surety bonds
31 U.S.C. 9305 - Authority and revocation of authority of surety corporations
38 U.S.C 1965 - Definitions
42 CFR 34.4 - Medical notifications
42 U.S.C. 1382c (PDF) - Definitions
42 U.S.C. 413 - Quarter and quarter of coverage
42 U.S.C. 416(l) - Retirement age
7 CFR 273 - Certification of eligible households
8 CFR 1.2 - Definitions
8 CFR 1.3 - Lawfully present aliens for purposes of applying for Social Security benefits
8 CFR 1003.14 - Jurisdiction and commencement of proceedings
8 CFR 1003.1 - Organization, jurisdiction, and powers of the Board of Immigration Appeals
8 CFR 103.6 - Surety bonds
8 CFR 204.5 - Petitions for employment-based immigrants
8 CFR 212.20-212.23 - Applicability of public charge inadmissibility; Definitions; Public charge determination; Exemptions and waivers for the public charge ground of inadmissibility
8 CFR 212.21(b) - Public Benefits
8 CFR 212.4 - Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3)
8 CFR 213.1 - Admission under bond or cash deposit
8 CFR 213a - Affidavits of support on behalf of immigrants
8 CFR 235 - Inspection of persons applying for admission
8 CFR 245.11 - Adjustment of aliens in S nonimmigrant classification
8 CFR 292 - Representation and appearances
8 CFR 293.1 - Computation of interest
8 U.S.C. 1363 - Deposit of and interest on cash received to secure immigration bonds
8 U.S.C. 1601-1646 - Restricting welfare and public benefits for aliens
8 U.S.C. 1611 (PDF) - Aliens who are not qualified aliens ineligible for Federal public benefits
8 U.S.C. 1612 (PDF) - Limited eligibility of qualified aliens for certain Federal programs
8 U.S.C. 1613 (PDF) - Five-year limited eligibility of qualified aliens for Federal means-tested public benefit
8 U.S.C. 1641 (PDF) - Definitions
Final Specification of Community Programs Necessary For Protection Of Life Or Safety Under Welfare Reform Legislation, 66 FR 3613 (Jan. 16, 2001) (Final rule)
INA 101 - Definitions
INA 101(a)(15) - Nonimmigrant classifications
INA 201 - Worldwide level of immigration
INA 203 - Allocation of immigrant visas
INA 208 - Asylum
INA 212(a)(4) - Public charge
INA 212(d) - Temporary admission of nonimmigrants
INA 213 - Admission of certain aliens on giving bond or undertaking; return upon permanent departure
INA 235 - Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing
INA 237(a)(5) - Public charge (deportable aliens)
INA 245(j) - Adjustment to permanent resident status
INA 289 - Application to American Indians born in Canada
Inadmissibility on Public Charge Grounds, 84 FR 41292 (Aug. 14, 2019) (Final rule)
Pub. L. 104-193 (PDF) - Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
Pub. L. 104-208 (PDF) - Illegal Immigration Reform and Immigrant Responsibility Act of 1996
Pub. L. 106-395 (PDF) - Child Citizenship Act of 2000
Pub. L. 111-293 (PDF) - Help Haitian Adoptees Immediately to Integrate Act of 2010
Pub. L. 111-8 (PDF) - Section 602(b), Title VI of the Afghan Allies Protection Act of 2009
Pub. L. 113-4 (PDF) - 127 Stat 54 of the Violence Against Women Reauthorization Act of 2013
Pub. L. 89-732 (PDF) - Cuban Refugees Adjustment of Status
Section 11, 26 Stat 1084 (PDF) of the Immigration Act of 1891
Section 212(a)(15), 66 Stat 163 (PDF), 183 of the Immigration and Nationality Act of 1952
Sections 1-2, 22 Stat 214 (PDF) of the Immigration Act of 1882
U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.
This update incorporates into Volumes 2, 8, and 12 policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced February 5, 2020, implementing the Inadmissibility of Public Charge Grounds Final Rule. This guidance is in effect as of February 24, 2020 and applies nationwide to all applications and petitions postmarked on or after that date. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Final Rule. For more information about the classes of aliens who are exempt from the Final Rule, see the appendices related to applicability. For information on related litigation affecting implementation, see our page on the injunction.
U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual to address the final rule on the public charge ground of inadmissibility. This policy guidance is effective on February 24, 2020, and will apply to all applicants and petitioners filing applications and petitions for adjustment of status, extension of stay, and change of status, except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy, including the 1999 Interim Field Guidance (PDF) and AFM Ch. 61.1. For additional information, see Public Charge Inadmissibility Determinations in Illinois. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Inadmissibility on Public Charge Grounds final rule. For more information about the classes of aliens who are exempt from the final rule, see the appendices related to applicability.
This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].