The government refused requests to exclude Obamacare premium tax credits from the public charge review.
Green card applications (Form I-485) postmarked, or filed online, on or after September 18 are reviewed under the new public charge standard. The public charge review looks at whether the applicant is likely to live dependent on government help in the future. In the rule finalized and announced on July 20, the government did not accept requests to exclude Obamacare premium tax credits (help with premiums for coverage bought through the government's health insurance Marketplace, HealthCare.gov) from the review. Many families have been lowering their monthly premiums with these credits, and on November 1 open enrollment for next year's coverage begins. Here is how the new standard treats the credits, how to answer on the application, and what needs to be decided now.
The government did not exclude the credits, but the credits alone do not decide the outcome
"In the final rule, the government did not accept comments asking it to exclude premium tax credits. It said it would not exclude any benefit that requires low income. It did say, however, that it does not consider medical services a person paid for with their own money without government assistance."
The benefits referred to here are those given by a government agency, or paid for with government funds, that are available only to people whose income or assets are below a certain level. The USCIS Policy Manual (the agency's internal adjudication guidance) gives cash assistance, public housing, food assistance, and government-funded health coverage as examples. Social Security benefits earned through work, Medicare (government health insurance for people 65 and older, among others), and unemployment benefits are excluded.
During the rulemaking, commenters asked that premium tax credits be excluded along with community health centers and vaccination programs. Their reason was that such benefits fill gaps in medical care rather than signal that a person cannot support themselves. This can be read to mean that what may matter is not having insurance itself, but whether government money lowered the premium.
In the same response, the government added two points: that it may also look at whether the medical service is one available to everyone in the community regardless of income, and that the fact of having received a benefit does not by itself decide the outcome. Conversely, even someone who has never received a benefit can be found ineligible for a green card once age, health, family circumstances, assets and financial status, and education and skills are considered together.
Several states, New York City, and immigrant organizations have sued over this rule in federal court in New York. But as of September 24 there is no court order halting it, and the court first takes up the case on October 9. The rule is in effect now.
Credits received or applied for in your own name on or after September 18 are considered
"According to the USCIS Policy Manual, among benefits that require low income, those received before September 18 are considered only if they are cash assistance for living expenses or long-term care in an institution at government expense."
The date is the first dividing line. Benefits received on or after September 18 are subject to review regardless of type. Premium tax credits received before then are neither cash assistance nor institutional care, so they are not considered. If credits you have been receiving since the start of this year continue past September 18, the continuing portion counts as received on or after September 18. Applying for or being approved for a benefit in your own name is also considered if it happened on or after September 18.
When the green card application was filed also matters. An application postmarked before September 18 and now awaiting a decision is reviewed under the prior standard, and because the prior standard also looks only at cash assistance and institutional care, premium tax credits are not taken into account.
The second date is in the tax law. Under the federal tax law changed last July, starting with 2027 coverage, the noncitizens who can receive the credits are narrowed to certain groups, such as lawful permanent residents. Most people waiting for a green card do not fall within those groups, so they will not be able to get federal credits starting next year. For these people, then, the federal credits that actually matter are two: credits received from September 18 through December 31 of this year, and an application for credits made during this enrollment period. Health coverage assistance that a state provides on its own is separate from this tax law, so it has to be checked separately.
Whose name the benefit was received in also matters. The Policy Manual treats a benefit as the applicant's only when the applicant is named on the list of people receiving it. Benefits received by family members such as children, or benefits applied for on someone else's behalf, are not the applicant's. However, if a family member became eligible because of the applicant's low income, the applicant's low income is considered in the review even though the benefit belongs to the family member. If the applicant has been living on benefits received by family members, that is looked at as well. For family coverage, start by checking the enrollment record to see whose names are listed.
Answer the application's public benefits questions truthfully after checking your records
"The instructions for the green card application tell applicants to answer 'Yes' to Question 63 only if they have received a government benefit available only to people with low income."
Question 63 asks whether you have ever received such a benefit, with no date limit. Benefits received in the past and benefits being received when the application is filed are all included. If the only benefits received were ones earned through work, such as Social Security or unemployment benefits, they are not included. If you answer "Yes," you list in detail in the table at Question 64 the name of the benefit, the period received, the amount where applicable, and the reason you received it. The instructions give job loss, a long illness, and insufficient income as examples of reasons.
The Policy Manual says it looks at the amount and duration, how recent the receipt was, and whether the reason for receiving the benefit still continues, so the reason field is not one to pass over briefly. If the reason has already ended or the benefit has been stopped, it is a good idea to also have documents ready that show this.
The instructions contain no sentence saying whether premium tax credits fall under Question 63. One cannot say for certain that they are included, or that they are excluded. What is clear is that the government addressed the credits in the part where it explained benefits that require low income, and did not exclude them. So pull up your enrollment records, confirm from when to when, in whose name, and how much was received, and then decide your answer.
The instructions say not to include money received as benefits in Question 58, which asks for household income. Reporting benefit money as part of income means reporting something contrary to the facts. The government has explained that in that case a finding of ineligibility for a green card may result.
Decide on the credits for the rest of this year now, rather than waiting for November
"According to the USCIS Policy Manual, if the period for which a benefit was applied for or approved continues past September 18, the period on or after September 18 is considered. However, if evidence is submitted that the benefit was stopped, the application was withdrawn, or the agency was notified that the person no longer wishes to receive it, that portion is not considered either."
Because most people waiting for a green card are not eligible for federal credits starting next year, what actually has to be weighed is the credit for the remaining months of this year. According to the Marketplace's guidance, you can choose to take all, some, or none of the advance payments of the premium tax credit that reduce your premium each month, and you can change this by updating the application information in your account. Waiting until November means more months of received credits pile up in the meantime.
If you keep your coverage and change only the advance credit to zero, there is no settled answer on whether USCIS will treat this as "stopping the benefit," because USCIS has not specifically addressed this situation. Even so, if you make the change, it is better to get a record of it. Keep in mind, though, that changing the amount leaves the months already received as they are, and the Policy Manual looks at the amount actually received, the duration, and how recent it was. Even after changing the amount, the reconciliation at tax time the following year, which checks the credits received against what you were actually entitled to, still remains to be done separately, so check with whoever prepares your taxes.
When renewing next year's coverage during the open enrollment period that starts November 1, first check whether you are eligible for the credit. If you apply for the credit when you are not eligible, you may end up with only a record of the application and no money received.
This does not mean you should drop your coverage. The Policy Manual says coverage obtained without government assistance can be submitted as evidence that you can handle health problems on your own, and it looks at whether household income and assets together can cover medical costs. A qualifying affidavit of support (Form I-864, a document in which a sponsor signs to take responsibility for living expenses) is also something the officer can consider.
Closing thoughts
There are three things to do now. First, check the records on the insurance Marketplace to see whether you applied for or received credits in your own name on or after September 18, and for what period and in what amount. For family coverage, also check whose names are on the list. Second, decide your answers to Questions 63 and 64 on the green card application based on those records, fill in the reason field at Question 64 in detail according to your actual circumstances, and do not include money received as benefits in the income field at Question 58. Third, decide now whether to take the credit in advance for the remaining months of this year, and if you change it, get a record of the change and keep it. At the November renewal, first check whether you are eligible for next year's credit. The fact of having received the credit does not by itself decide the outcome, but you need to know exactly what you received, when, and in whose name.
Frequently Asked Questions
Q. Will my green card be denied if I receive Obamacare premium tax credits?
Receiving the credits does not by itself decide the outcome. However, in the public charge rule that took effect on September 18, the government refused requests to exclude premium tax credits from the review, so credits received or applied for in your own name on or after September 18 may be considered together with age, health, family circumstances, assets and financial status, and education and skills.
Q. Are credits received before September 18 also a problem?
Among benefits received before September 18, the USCIS Policy Manual looks only at cash assistance for living expenses and long-term care in an institution at government expense, so premium tax credits received before then are not considered. However, if the credits continued past September 18, the portion after that date is considered. Green card applications postmarked before September 18 and awaiting a decision are reviewed under the prior standard, and the prior standard does not take premium tax credits into account either.
Q. Can I keep receiving the credits next year while I wait for my green card?
Under the federal tax law changed last July, starting with 2027 coverage, the noncitizens who can receive the credits are narrowed to lawful permanent residents, Cuban and Haitian entrants, and people lawfully living in the United States under the Compacts of Free Association. Green card applicants outside these groups are not eligible for federal credits next year, so when renewing during the November enrollment period, first check whether you are eligible. If you apply when you are not eligible, you may end up with only a record of the application and no money received.
Disclaimer: This column provides general information and is not legal advice for a particular case. Individual immigration matters should be discussed with a qualified immigration attorney.
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