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Introduction
Public charge has been part of U.S. immigration law for more than
100 years as a ground of inadmissibility and deportation. An
individual who is likely at any time to become a public charge is
inadmissible to the United States and ineligible to become a legal
permanent resident. However, receiving public benefits does
not automatically make an individual a public charge. This fact
sheet seeks to inform non-citizens about public charge
determinations and help them to make informed choices about whether
to apply for certain public benefits.
Background
Under Section 212(a)(4) of the Immigration and Nationality Act
(INA), an individual seeking admission to the United States or
seeking to adjust status to that of an individual lawfully admitted
for permanent residence (green card) is inadmissible if the
individual, "at the time of application for admission or
adjustment of status, is likely at any time to become a public
charge." If an individual is inadmissible,
admission to the United States or adjustment of status is not
granted.
Immigration and welfare laws have generated some concern about
whether a non-citizen may face adverse immigration consequences for
having received Federal, state, or local public benefits. Some
non-citizens and their families are eligible for public benefits –
including disaster relief, treatment of communicable diseases,
immunizations, and children’s nutrition and health care programs
– without being found to be a public charge.
Definition of Public Charge
For purposes of determining inadmissibility, agency guidance has,
since 1999, defined “public charge” to mean an individual who 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.” See “Field Guidance on
Deportability and Inadmissibility on Public Charge Grounds,”
64 FR 28689 (May 26, 1999). In determining whether an alien
meets this definition for public charge inadmissibility, a number of
factors must be considered, including age, health, family status,
assets, resources, financial status, education, and skills. No
single factor - other than the lack of an affidavit of support, if
required - will determine whether an individual is a public
charge.
Benefits Subject to Public Charge Consideration
The agency guidance specifies that cash assistance for income
maintenance includes Supplemental Security Income (SSI), cash
assistance from the Temporary Assistance for Needy Families (TANF)
program and State or local cash assistance programs for income
maintenance, often called “General Assistance” programs.
Acceptance of these forms of public cash assistance could make a
non-citizen inadmissible as a public charge, if all other criteria
are met. However, the mere receipt of these benefits does not
automatically make an individual inadmissible, ineligible to adjust
status to lawful permanent resident, or deportable on public charge
grounds. See “Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May
26, 1999). Each determination is made on a case-by-case basis
in the context of the totality of the circumstances.
In addition, public assistance, including Medicaid, that is used
to support aliens who reside in an institution for long-term care
– such as a nursing home or mental health institution – may also
be considered as part of the public charge analysis of the totality
of the circumstances. Short-term institutionalization for
rehabilitation is not subject to public charge consideration.
Benefits Not Subject to Public Charge Consideration
Under the agency guidance, 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:
• 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, prenatal care, 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 (such as attending public school),
including benefits under the Head Start Act and aid for elementary,
secondary, or higher education
• Job training programs
• In-kind, community-based programs, services, or assistance
(such as soup kitchens, crisis counseling and intervention, and
short-term shelter)
• Non-cash benefits under TANF such as subsidized child care
or transit subsidies
• Cash payments that have been earned, such as Title II
Social Security benefits, government pensions, and veterans'
benefits, among other forms of earned benefits, do not support a
public charge determination
• Unemployment compensation is also not considered for public
charge purposes
Some of the above programs may provide cash benefits, such as
energy assistance, transportation or child care benefits provided
under TANF or the Child Care Development Block Grant (CCDBG), and
one-time emergency payments under TANF. 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.
FOR MORE
INFORMATION:
Contact John
Byrley at tel: 410-719-1501.
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