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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Receipt Of Certain Public Benefits Will Not Render
Alien A Public Charge: : Part 1 Of 2

by Weiqi Li and Mark E. Harrington

Many aliens, who are interested in entering the U.S. and/or becoming legal permanent residents, fear that if they or their relatives and dependents receive various public benefits from Federal or State governments, the Bureau of Citizenship and Immigration Service (BCIS, formerly the INS) or the Department of State (DOS) will decide they are likely to become a "public charge", and as a result, they may not get green cards. According to U.S. Immigration laws, a public charge finding may result in denial of application to adjust to Legal Permanent Resident status by the BCIS, denial of an immigrant visa to enter the U.S. by the U.S. Embassies or Consulates of DOS, or even deportation in very rare circumstances.

Background

The rules that determine whether an alien is likely to become a "public charge" and the ramifications on admissibility and even deportation of such a determination have been part of U.S. immigration law for more than 100 years. An alien who is likely at any time to become a public charge is inadmissible and ineligible to become a legal permanent resident of the US. An alien is also deportable if he or she has become a public charge within five years after his or her date of entry from causes not shown to have arisen since entry. For deportation purposes, an immigration judge will make the final determination during removal proceeding; fortunately, deportations on public charge grounds have been very rare.

Since the mid-1990's, new immigration and welfare reform laws have generated considerable public confusion and concern about whether receipt of certain Federal, State, or local public benefits may render an alien a "public charge" and as a result the alien may face adverse immigration consequences. This concern has prompted some aliens, who are eligible to receive such public benefits as disaster relief, treatment of communicable diseases, immunizations, and children's nutrition and health care programs, to be reluctant to accept such benefits. This potentially causes considerable harm to these aliens and the general public. Unfortunately, the fear of being labeled a "Public Charge" and the absence of a clear definition of "public charge" undermines Federal Government policies designed to increase access to health insurance and health care.

In order clarify this issue and in an attempt to increase access to health care and help people become self-sufficient, the Clinton Administration published a proposed rule in the Federal Register on May 26, 1999 that describes the circumstances under which a non-citizen can receive public benefits without becoming a "public charge" for purposes of admission into the US, adjustment of status to Legal Permanent Resident, and deportation. The 1999 Proposed Rule provided a definition for "public charge" and examples of the categories of public benefits that will not be considered in public charge consideration. The rule describes the various issues that must be considered in making a public charge determination. Although never finalized, the 1999 Proposed Rule has been incorporated in the INS's field manuals and is used by the INS to make decisions concerning "public charge" issues.

It has never been the policy of the INS that receipt of any publicly funded services or benefits renders an alien a public charge, or indicates that the alien is likely to become a public charge. In fact, there are many federally funded benefits that aliens may receive (and are encouraged to receive, if needed) that will not render them a public charge. The nature of the public program must be considered. For instance, attending public schools, taking advantage of school lunch or other supplemental nutrition programs, or receiving emergency medical care would not make an alien inadmissible as a public charge, despite the use of public funds.

Definition of Public Charge

Public charge means an alien who (for deportation purposes) has become or (for admission or adjustment of status purposes) is likely to become "primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense." This definition is stated in the INS's Field Guidance manual. In addition, the DOS sent a similar definition of "public charge" in a cable to U.S. consulates abroad providing guidance on public charge determinations for admission purposes.

Benefits Subject to Public Charge Consideration

If at the time of application for admission or adjustment an alien is receiving a cash public assistance for income maintenance or is institutionalized for long-term care including assistance from the programs listed below, the receipt of such benefits should be taken into account in determining if an alien is like to become a public charge. However, regulations state that the determination must be made using the totality of the circumstances test (as discussed below), along with the other statutory factors. The following is a list of public benefits that may render an alien a public charge:

  1. Supplemental Security Income (SSI);
  2. Cash assistance from the Temporary Assistance for Needy Families (TANF) program;
  3. State or local cash assistance programs for income maintenance, often called "General Assistance" programs; and
  4. Public assistance, including Medicaid, that is used for supporting aliens who reside in an institution for long-term care -- such as a nursing home or mental health institution
Acceptance of these forms of public cash assistance could make a non-citizen a public charge, if all other criteria are met under the totality of circumstances test (as described below in the section "Totality of the circumstances tests.") Please note that short-term institutionalization for rehabilitation is not subject to public charge consideration.

In addition, please note that not all cash assistance is provided for purposes of income maintenance, and thus not all cash assistance is relevant for public charge purposes. For example, some energy assistance programs provide supplemental benefits through cash payments, in addition to vouchers or in-kind benefits, depending on the locality and the type of fuel needed. Likewise, cash payments could also be provided for childcare assistance. Such supplemental, special-purpose cash benefits should not be considered in public charge determinations because they are not evidence of primary dependence on the government for subsistence.

Benefits Not Subject to Public Charge Consideration

Non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:

  1. Medicaid;
  2. Children's Health Insurance Program (CHIP);
  3. Food Stamps;
  4. The Special Supplemental Nutrition Program for Women, Infants and Children (WIC);
  5. Immunizations;
  6. Prenatal care;
  7. Testing and treatment of communicable diseases;
  8. Emergency medical assistance;
  9. Emergency disaster relief;
  10. Nutrition programs;
  11. Housing assistance;
  12. Energy assistance;
  13. Child care services;
  14. Foster care and adoption assistance;
  15. Transportation vouchers;
  16. Educational assistance;
  17. Job training programs; and
  18. Non-cash benefits funded under the TANF program.

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided in cash under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF. However, since the purpose of such benefits is not for income maintenance, but rather to avoid the need for on-going cash assistance for income maintenance, they are not subject to public charge consideration.

Totality of the Circumstances Test

An alien's mere receipt of cash assistance for income maintenance, or being institutionalized for long-term care, does not automatically make him or her inadmissible, ineligible to adjust status to legal permanent resident, or deportable on public charge grounds. The regulation requires that BCIS and DOS officials should assess the financial responsibility of the alien by examining the "totality of the alien's circumstances at the time of his or her application" by considering the alien's age, health, family status, assets, resources and financial status, education, and skills, among other factors as well. Each determination is made on a case-by-case basis.

Tomorrow's Article: Part Two will continue to discuss issues concerning public charge determinations, including obligations associated with affidavit of suppport documents.


About The Author

Weiqi Li and Mark E. Harrington are immigration attorneys with the law firm, Zhang & Associates, P.C. in Houston, Texas. Li can be reached at wli@hooyou.com; and Harrington can be reached at mharrington@hooyou.com. Visit the firm website at www.hooyou.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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