A Points-Based Public Charge Rule

During President Donald Trump’s first term in office, his administration sought to strengthen the “public charge” requirement of the Immigration and Nationality Act (INA), which aims to prevent the entry of immigrants who are likely to depend on government assistance. The reform, however, was blocked by legal challenges and ultimately withdrawn by the Biden administration.

More recently, U.S. Citizenship and Immigration Services (USCIS) issued guidance directing immigration adjudicators to make fuller use of their existing public charge authority, consistent with current regulations. This is a positive step. But the second Trump administration should go further by strengthening the public charge rule to provide a clearer and more legally sound framework that excludes more applicants likely to become public charges while simultaneously offering greater certainty to applicants.

This issue brief presents a reformed public charge rule based on a points system. This proposal would more effectively exclude immigrant applicants likely to become public charges, as intended by the INA. An effective public charge rule would benefit current citizens by increasing tax revenue and economic growth while reducing government spending on welfare. It would also benefit immigrants by providing greater certainty about their eligibility and by incentivizing them to learn English and pursue education to qualify to immigrate.

One of the first federal immigration restrictions was the Immigration Act of 1882’s ban on immigrants who were “unable to take care of themselves without becoming a public charge.” In the Immigration Act of 1889, Congress excluded “paupers or persons likely to become a public charge.” For nearly 150 years—longer than any modern federal welfare or entitlement program has existed—U.S. immigration law has included some form of public charge exclusion. Congress recognized that, given the wealth of the U.S., many of the world’s poorest people would be better off as “paupers” in America than staying in their native countries.

The current form of the rule, found in the INA, provides that “any alien 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 or adjustment of status, is likely at any time to become a public charge is inadmissible.”[1]

This statute applies to both temporary and permanent visitors, though it is applied differently in each case. For nonimmigrant visa applicants—excluding those applying for “dual-intent” visas, which allow for the possibility of permanent immigration—satisfying the public charge rule requires only demonstrating to the immigration officer that they intend to leave the country and will not become a public charge during their stay. For the most common visa of this category, the tourist visa, this means showing sufficient financial means for the trip and the return home without working illegally or relying on welfare or charity.

Public charge determinations are most relevant for evaluating permanent immigrants, who plan to remain in the U.S. through old age and thus present the greatest potential fiscal risks and benefits. Accordingly, this issue brief focuses on them.

The INA requires that the following factors be considered in determining whether an applicant is likely to become a public charge:

• Age
• Health
• Family status
• Assets, resources, and financial status
• Education and skills

The law also allows the government to consider other characteristics that are not specified. However, an applicant deemed likely to become a public charge may still be admitted or allowed to remain if the applicant can submit an affidavit of support from someone who agrees to assume financial responsibility.

The current standard that is used to determine if a prospective immigrant is likely to become a public charge is based on a 1999 Interim Field Guidance issued during the Clinton administration.[2] That standard is not hard to meet: in 2017, approximately 1,000 immigrant visa petitions—out of well over one million—were rejected based on the public charge rule.[3] A number of those refusals may have rested on additional grounds and could subsequently be reversed in a later fiscal year if applicants established, in a new interview, that they were not likely to become public charges.

One reason that the rule is so rarely invoked is that, in making determinations, the government currently considers only whether an applicant has actually received government benefits in the past, but not whether they applied for them. Furthermore, adjudicators do not consider all forms of benefits in making their determinations, limiting their consideration to whether an applicant has received:

• Supplemental Security Income (SSI)
• Cash under Temporary Assistance for Needy Families (TANF)
• State, tribal, territorial, or local cash benefit programs
• Institutionalized long-term care at government expense

The current approach to the public charge rule does not take into account whether applicants have ever received aid under any of the following welfare programs:

• Medicaid
• Supplemental Nutrition Assistance Program (SNAP)
• Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
• Subsidies and disability pay under Medicare or Social Security
• Subsidies for health insurance under the Affordable Care Act
• Housing vouchers, rent or utility subsidies, or residence in public housing
• Tax credits for low-income individuals such as the Earned Income Tax Credit (EITC)
• Other refundable tax credits like the Child Tax Credit (CTC) or educational aid
• Free school lunch

The Biden administration formalized this limited approach in a 2022 regulation that replaced the Trump administration’s overhaul attempt. The Biden-era regulation defines a public charge as one who is “primarily dependent on the government for subsistence.”[4] This is a higher bar to clear to become a public charge, because subsistence implies that the immigrant’s life would suffer or end without government aid—not that the immigrant is, on net, straining public finances. Therefore, immigrants who receive substantial welfare benefits without paying much, if any, in taxes would still not be considered public charges, even if their presence in America costs taxpayers thousands of dollars every year.

The Biden public charge rule also excludes consideration of future tax payments and thus does not allow a consular officer or immigration adjudicator to determine whether an immigrant is likely to become a net fiscal contributor or a net fiscal burden.

The current public charge regulations—which allow only for consideration of past receipt of a limited set of benefits—are out of step with the goal of the statute, which requires the government to weigh a host of factors to determine whether an immigrant is likely to become a public charge in the future. Of course, receipt of benefits, whether at the time of the application or in the past, should be part of the consideration. But the law and common sense allow many other factors to be considered.

The first Trump administration sought to strengthen the public charge rule through a regulation that would have expanded the number of programs considered to be public benefits, allowed adjudicators to consider whether an applicant had applied for benefits (as opposed to just receipt), and expanded the use of “bonds” to ensure that immigrants would pay back any benefits they may use.[5]

The Trump rule added consideration of the following welfare programs:

• SNAP
• Housing vouchers, rent or utility subsidies, and residence in public housing
• Medicaid
• Emergency medical care benefits
• Free school lunch

Under the Trump rule, an applicant was “likely at any time to become a public charge” if it was “more likely than not” that the applicant would “receive one or more public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”[6] Thus, under the rule, applicants should be rejected if the adjudicator determines that there is at least a 50% chance that the applicant will receive one welfare program for a year, or two welfare programs for 6 months, within a three-year period. The rule, however, was challenged by a coalition of blue states on the grounds that it violated the Administrative Procedure Act and was racially discriminatory. The courts delayed enforcement of the rule until Trump left office, and the Biden administration withdrew it.[7]

Although it was a step in the right direction, the Trump public charge rule reform suffered from a serious flaw: it did not provide adjudicators with sufficient clarity on how to evaluate demographic factors. In particular, the proposal offered no guidance on how much weight should be given to each of the factors. For example, does education matter more than age or age more than education? What about English proficiency?

These are the types of questions that a new public charge regulation can answer by creating a points system for public charge decisions. A points guide for immigration adjudicators would simplify implementation because decisions would be quicker and less arbitrary, which would also lessen the regulatory burden on both the government and immigrants.

In a previous report on the lifetime fiscal impact of immigrants,[8] I analyzed data on tax payments and benefit receipts across different immigrant groups. That report showed that immigrants without a high school diploma were more likely than not to become net burdens on the taxpayer, regardless of their age—and that elderly immigrants, regardless of education, were likely to become net public burdens. An improved public charge rule should therefore exclude all immigrants in these high-risk groups unless they can demonstrate—through factors such as English proficiency, stable employment prospects, or financially capable sponsors—that they differ meaningfully from the statistical norm.

The Trump administration should provide USCIS and consular officers with a rubric based on all of the factors that are required to be considered under the law, as well as English proficiency and past receipt of welfare benefits (Table 1). For immigrants who are applying for adjustment of status in the U.S. after living here for at least one year, the minimum score required would be 50 out of 100 possible points. For those applying for an immigrant visa who are outside the U.S. and have never lived in the U.S. other than on short-term tourist visits, the minimum score required would be 40 out of 80 possible points.

Table 1

Points System Rubrics

Adjusting Status

Category	Maximum Points
Education	30
Age	20
English proficiency	20
Past public benefit use	20
Health	5
Financial resources	5

Consular Processing

Category	Maximum Points
Education	30
Age	20
English proficiency	20
Health	5
Financial resources	5

For each category, points would be awarded as follows:

Education (Up to 30 Points)

• No high school diploma or equivalent (0)
• High school diploma (10)
• Some college education such as an associate’s degree (15)
• Bachelor’s degree (25)
• Professional or graduate degree (30)

Age (Up to 20 Points)

• Under 21 years old (10)
• 21 to 39 years old (20)
• 40 to 49 years old (10)
• 50 to 59 years old (5)
• 60 years old and older (0)

English Proficiency (Up to 20 Points)

Applicants would have the option to take either the Test of English as a Foreign Language (TOEFL) or the International English Language Testing System (IELTS), which is more common among British English speakers. Immigrants with a bachelor-equivalent or higher degree from an English-speaking university in an English-speaking country would not be required to take the test and would receive the full 20 points.

• TOEFL or IELTS score under the 20th percentile (0)
• TOEFL or IELTS score between the 20th and below the 40th percentile (5)
• TOEFL or IELTS score between the 40th and below the 60th percentile (10)
• TOEFL or IELTS score between the 60th and below the 80th percentile (15)

• TOEFL or IELTS score at or above the 80th percentile or a bachelor’s degree or equivalent or a higher degree from a U.S. university or a university in one of the following English-speaking countries (20):
  • United Kingdom
  • Ireland
  • Canada
  • Australia
  • New Zealand

Past Public Benefit Use (Up to 20 Points)

• Currently receives any public benefits or has ever received public benefits for 12 months or longer (0)
• Received public benefits for at least 6 months but less than 12 months (5)
• Received public benefits for at least 3 months but less than 6 months (10)
• Received public benefits for less than 3 months (15)
• Never received any public benefits (20)

Health (Up to 5 Points)

• Disabled (0)
• Not disabled (5)

The regulation should list explicitly which conditions, such as blindness or deafness, would count as disabilities for purposes of the public charge determination. Disability is included as one factor not out of any animus, but to ensure that public resources remain available for current U.S. citizens with disabilities, rather than being spread across large numbers of immigrants with conditions that will strain public resources. In addition, this factor is not weighed very heavily, meaning that it will still be easy for someone with a disability to pass this public charge test as long as they have some education, speak English relatively well, and have some financial resources—or are willing to pay their immigration bond.

Financial Resources (Up to 5 Points)

• Net household assets below $10,000 (0)
• Net household assets of at least $10,000 (5)

The immigrant should submit tax returns, bank account statements, investment account statements, and other financial documents such as home-value estimates and a list of all debts to calculate his or her net assets.

The consideration of “family status,” which is required by law, would involve scoring each spouse in a married couple separately on this rubric and then averaging both scores.

Absent a showing of other extraordinary evidence, any score below the minimum would lead to a determination that the applicant is likely to become a public charge and is thus rendered inadmissible.

For a better understanding of how this system would work in practice, consider the following illustrative examples.

Married Adult Sibling of a U.S. Citizen (FB-4 Immigrant Visa)

In this case we have a 42-year-old Mexican man who is married to a 37-year-old Mexican woman. The man was sponsored for permanent residency by his U.S. citizen sibling under the FB-4 immigrant visa, and the couple has been waiting in Mexico for more than a decade for an FB-4 visa to become available. Since they are married, both spouses must be evaluated by the public charge rule points table, and their scores will be averaged to determine whether they meet the requirements.

The husband did not complete high school, while the wife has a high school diploma but no college education. Both received low scores on the TOEFL. Neither is disabled. Although neither has ever received U.S. public benefits, because they have only ever visited the U.S. briefly for tourism, they will be evaluated on the 80-point scale that disregards past public benefit.

The couple would be scored as shown in Table 2.

Table 2

Married Adult Sibling of a U.S. Citizen (FB-4 Immigrant Visa)

Husband (Principal Applicant)

Category	Description	Points
Education	High school dropout	0
Age	42 years old	10
English proficiency	19th percentile	0
Health	Not disabled	5
Financial resources	$7,000 net assets	0
Total		15

Wife

Category	Description	Points
Education	High school diploma	10
Age	37 years old	20
English proficiency	29th percentile	5
Health	Not disabled	5
Financial resources	$7,000 net assets	0
Total		40

Since their scores are 15 and 40, their average score is 27.5, below the 40-point threshold, thus making them inadmissible under the proposed public charge rule. Their visa would still be available, but they would have to reapply at the consulate after obtaining more education, saving more to meet the asset test, or learning more English. However, each year that they wait could subtract points from the age category.

Parent of U.S. Citizen (IR-5 Immigrant Visa): Example #1

This is the fastest-growing immigrant visa category because it is uncapped, so there is no waitlist. In this case we have a married couple from the Dominican Republic, aged 63 and 59, and who never lived in the United States.

The couple would be scored as shown in Table 3.

Table 3

Parent of U.S. Citizen (IR-5 Immigrant Visa): Example #1

Husband

Category	Description	Points
Education	High school diploma	10
Age	63 years old	0
English proficiency	Not taken	0
Health	Not disabled	5
Financial resources	$11,000 net assets	5
Total		20

Wife

Category	Description	Points
Education	High school diploma	10
Age	59 years old	5
English proficiency	Not taken	0
Health	Not disabled	5
Financial resources	$11,000 net assets	5
Total		25

Because both spouses score under 40 out of their 80-point scale, they would be deemed inadmissible under the public charge rule, and their application for permanent residency would be rejected.

Parent of U.S. Citizen (IR-5 Immigrant Visa): Example #2

This second hypothetical example of the same parent visa category involves well-educated parents of a high-skilled immigrant from India who is sponsoring them after becoming naturalized.

The couple would be scored as shown in Table 4.

Table 4

Parent of U.S. Citizen (IR-5 Immigrant Visa): Example #2

Husband

Category	Description	Points
Education	College graduate	25
Age	66 years old	0
English proficiency	59th percentile	10
Health	Not disabled	5
Financial resources	$25,000 net assets	5
Total		45

Wife

Category	Description	Points
Education	Some college	15
Age	62 years old	0
English proficiency	51st percentile	10
Health	Not disabled	5
Financial resources	$25,000 net assets	5
Total		35

The average of their scores is exactly 40 points out of 80, so they can obtain their visa and live in the United States.

Employment-Based Immigrant (EB-2 Immigrant Visa)

In this case we have a German man who has spent years in the U.S. on an H1-B visa sponsored by a major bank and has now been sponsored for permanent residency. He is married to an Italian immigrant whom he met while they were both international students in the United States.

The couple would be scored as shown in Table 5.

Table 5

Employment-Based Immigrant (EB-2 Immigrant Visa)

Husband

Category	Description	Points
Education	Master’s degree	30
Age	34 years old	20
English proficiency	U.S. educated	20
Past public benefit use	None	20
Health	Not disabled	5
Financial resources	$100,000 net assets	5
Total		100

Wife

Category	Description	Points
Education	College graduate	25
Age	33 years old	20
English proficiency	U.S. educated	20
Past public benefit use	Minor use as a student	15
Health	Not disabled	5
Financial resources	$100,000 net assets	5
Total		90

They both have very high scores and are thus admissible and can receive their visa. This will be the result for almost every single employment-based visa application, but not for family visa applications.

The INA allows the government to require immigrant applicants to post a bond in order to receive a visa, but in practice this requirement is rarely if ever imposed.[9] The Trump administration, however, has recently begun using this authority to deter visa overstays for tourists from a few African countries with high visa overstay rates.[10] The proposed reform in President Trump’s first term also sought to increase the use of immigration bonds in the public charge context. Under that proposal, applicants who could not satisfy the public charge standard could still be admitted if they posted a bond, but the bond—which is normally refundable after naturalization or permanent departure—would instead be retained permanently, thus effectively creating a fee for immigrants likely to become public charges.[11]

A public charge bond is preferable to an outright public charge exclusion because it gives applicants who would otherwise be rejected the chance to immigrate to the U.S., but only if they can cover the costs of likely future public benefit use. The 2019 reform proposal set these public charge bonds at $8,100, or about $10,000 in today’s dollars.[12] A better option would tie the bond amount to the applicant’s score under the points system: for those assessed on the 100-point scale, the bond would equal $1,000 per point below the threshold; for those on the 80-point scale, $1,250 per point. If an immigrant later violates the public charge rule—for example, by receiving public benefits as a green card holder—the bond would be forfeited and the revenue directed to the U.S. Treasury for deficit reduction.

For instance, if an immigrant’s public charge score is 30 out of 80—10 points below the 40-point threshold for admission—he can post a $10,000 bond to overcome it. If he is married or has a child, then the amount would be $20,000.

By increasing the costs of immigration, public charge bonds would ensure that more visas go to wealthier and more educated applicants and that fewer go to potential public charges. These bonds would simultaneously reduce the deficit by allowing the Treasury to accrue interest on potentially billions of dollars in immigration bonds.

A stronger public charge rule would have two effects on the immigrant flow: it would encourage immigrants to obtain more education and learn more English, and it would shift visa allocation to more educated and younger applicants both within and across visa categories. For example, because negative public charge determinations would overwhelmingly occur among family visa applicants, it is likely that many of those visas would go unused and thus that more visas would shift to the employment-based category as the law mandates. Additionally, within the family-based visa categories, more educated and younger applicants would have the opportunity to come to the U.S. ahead of earlier applicants who were rejected on public charge grounds. Both effects would result in a more highly skilled immigrant flow and thus a reduced budget deficit.

To estimate how many immigrants would fail to meet the public charge rule test—and the resulting effects on visa allocation—Table 6 analyzes American Community Survey (ACS) data on noncitizens who arrived within the last five years who were at least 18 years old at the time of arrival. Among such immigrants, those who fall into one of three demographic groups are unlikely to qualify under the new public charge proposal: those who lack a high school diploma, unless they are between ages 21 and 39; those who lack a bachelor’s degree and are age 60 or older; and those under 60 years old with either a high school diploma or some college education but bad English proficiency. Under this proposal, 32.2% of recent immigrants fall into one of these three groups and thus would likely be disqualified.

Table 6

Share of Recent Immigrants Likely to Be Excluded Under Points-Based Public Charge Rule

Education	Age at Migration	English Level	Share of Recent Immigrants
Less than high school	All ages except 21- to 39-year-olds	All levels	7.3%
No bachelor’s degree	Age 60 or older	All levels	5.4%
High school and some college	Under 60 years old	Bad English or no English	19.6%
Total likely ineligible under public charge criteria			32.2%

Some may object that this estimate—because it includes all noncitizens who responded to the ACS—may include a large number of illegal immigrants. To ease these concerns, I repeated the same test with the 2019 ACS, which predates the border crisis and thus has fewer illegal immigrant respondents. I also repeated the test with the 2023 ACS sample but limited the analysis to non-Mexican and non–Central American respondents who arrived in the last five years, since the overwhelming majority of illegal immigrants are from either Mexico or Central America.

The 2019 ACS data, presented in Table 7 suggest that 27.9% of recent arrivals would fall into one of the three groups likely to be inadmissible—lower than the estimate based on 2023 data but still very high.

Table 7

2019 ACS Inadmissibility Estimates

Education	Age at Migration	English Level	Share of Recent Immigrants
Less than high school	All ages except 21- to 39-year-olds	All levels	7.6%
No bachelor’s degree	Age 60 or older	All levels	5.1%
High school and some college	Under 60 years old	Bad English or no English	15.1%
Total likely ineligible under public charge criteria			27.9%

Using the non-Mexican and non–Central American (Honduran, Salvadoran and Guatemalan) 2019 ACS sample, we get an even lower share of likely inadmissible immigrants: 24.2%, nearly one in four (Table 8).

Table 8

Non-Mexican and Non–Central American Inadmissibility Estimates

Education	Age at Migration	English Level	Share of Recent Immigrants
Less than high school	All ages except 21- to 39-year-olds	All levels	5.4%
No bachelor’s degree	Age 60 or older	All levels	6.0%
High school and some college	Under 60 years old	Bad English or no English	12.8%
Total likely ineligible under public charge criteria			24.2%

The true inadmissibility rate will probably lie between 24% and 32%, given that legal immigrants tend to be older than those who are in the U.S. illegally. Excluding Mexicans and Central Americans reduces the share of legal immigrants in the sample who are sponsored by family members as well. In other words, we can reasonably expect that if we had a true sample with English ability, education, and age of all legal permanent resident applicants, approximately one in four would be denied or have to post a bond on the basis of this proposed public charge rule.

In estimating the effect of this proposal on greed card issuance, I assumed a lowerest estimated share of visas among the previous estimates that would be affected, since some applicants are exempt from the public charge rule (refugees and asylees). I also assumed that all applicants age 60 or older were parents of U.S. citizens and that all the diversity visa applicants had a high school diploma, as is required by law. Using the pre-pandemic fiscal-year 2019 immigrant visa issuances as a baseline, that means approximately 201,000 visas would be affected. Table 9 shows the impact for each visa category.

Table 9

Impact of Points-Based Public Charge Rule on Different Visa Categories

Type and Class of Admission	Total	Number Affected	Share Affected
Spouses of U.S. citizens	304,338	59,290	19.5%
Children of U.S. citizens	61,299	N/A	0%
Parent of U.S. citizens	140,128	95,484	68.1%
Family-sponsored preferences	204,139	39,770	19.5%
Employment-based preferences	139,458	0	0%
Diversity	43,463	6,684	15.4%
Refugees and asylees	106,911	Exempt	0%
All other types of admission	32,029	Exempt	0%
Total	1,031,765	201,228	19.5%

As noted above, anyone excluded under the new public charge rule would have the option of posting a bond to be admitted. If the average bond is only $10,000 and all affected visa applicants pay it, this policy would raise $2 billion annually in bonds. And if only 10% of applicants violate the public charge rule later on and forfeit their bond, the result is a net deficit reduction of $200 million annually plus the interest on these bonds—approximately $80 million at a 4% long-term U.S. Treasury bond rate—for a total deficit reduction of more than $3 billion over a 10-year period.

But the greatest fiscal gains from this policy would be the result not of the bonds that the immigrants pay but the changes in selection of who immigrates. Many visas that are not issued in the extended family categories because of this proposed rule would instead carry over to the employment-based category. The other large gains would come from reducing the number of visas granted to parents of U.S. citizens, who often represent a large fiscal drag due to their collection of Social Security and Medicare shortly after arriving. Many in this category would either not be able to pay the required bond or would forfeit it upon receipt of those benefits.

For illustrative purposes, Table 10 shows the potential fiscal impact of this new system. I assumed that the public charge rule would be implemented as proposed in this issue brief, with an average bond amount of $10,000, half of the applicants in each category paying the bond, and 1 in 10 of bond payers forfeiting it through noncompliance. In that scenario, this proposal would raise $11.8 billion over 10 years, primarily via the increase in employment-based immigration. It would then raise more than $1 trillion over 30 years, from both the increase in employment-based immigration and a reduction in the number of elderly parents of U.S. citizens collecting Social Security and Medicare. These calculations are based on my report on the fiscal impact of immigration using Congressional Budget Office scoring.[13]

Table 10

Fiscal Impact of Points-Based Public Charge Rule

Visa Effect	Fiscal Impact Over 10 Years	Fiscal Impact Over 30 Years
Reducing by 47,750 parent of U.S. citizen visas	–$9.9 billion	+$470.1 billion
Reducing by 20,000 extended family visas	–$2.5 billion	–$10.6 billion
Increasing by 20,000 employment visas	+$23.2 billion	+$548.7 billion
Public charge bond revenue and interest	+$0.9 billion	+$5.2 billion
Total fiscal impact	+$11.8 billion	+$1 trillion

A rigorous public charge rule—built upon objective, measurable criteria such as education, age, English proficiency, and welfare use—would better select future immigrants to the U.S. and reduce uncertainty for applicants. By aligning the allocation of green cards with immigrants’ likely fiscal contributions, this rule could reduce the federal deficit by billions every single year, promote greater self-sufficiency, grow the economy, and ensure that limited visa spots are directed to those who are most prepared to thrive and assimilate in the United States. While more applicants would be deemed inadmissible, the option of public charge bonds would create a fair and flexible pathway for them to immigrate regardless, and the clear expectations of a points-based system would encourage applicants to seek more education and learn English. The Trump administration should move quickly to implement this proposal so that any delays due to lawsuits would not prevent its implementation.

Please see Endnotes in PDF

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