Overview of Public Charge

New public charge, myattorneyusa.com

 

Updates

August 11, 2020: Due to a July 29, 2020 decision by the United States District Court for the Southern District of New York, the USCIS will apply the 1999 public charge rule rather than the new public charge rule for applications postmarked on or after July 29, 2020. Forms associated with the new public charge rule such as the Form I-944, and fields added to forms to comport with the new public charge rule, will not be considered. This article covers the 1999 public charge rule. We will update the article if the public charge situation changes further.

February 24, 2020: The Government began implementing its new public charge rule for all affected petitions and applications filed on or after February 24, 2020. Thus, the public charge guidance in this article does not apply to petitions and applications postmarked or filed on or after February 24, 2020. This older public charge guidance continues to apply to pending petitions and applications filed before February 24, 2020. Please consult with an experienced immigration attorney for case-specific guidance. We discuss the main points of the new public charge rule in a separate post [see blog].

October 14, 2019​: The Trump Administration has published a new public charge rule which was slated to take effect on October 15, 2019 [see blog]. That rule, which would have made overcoming the presumption of public charge more burdensome, is currently enjoined from being implemented by order of three separate Federal District courts [see blog]. Thus, for the time being, the public charge rules discussed in this article remain in effect. We will continue to update the website with more information as it becomes available. Those with questions about how the developments in public charge law may affect their cases should consult with an experienced immigration attorney.

Introduction

In order to be admissible to the United States, most aliens are required to establish that they are not liable to become a “public charge,” that is, that he or she would not become dependent on certain forms of governmental financial assistance. If an alien is found to be likely to become a public charge, and is not specifically exempt from public charge considerations, he or she will be inadmissible to the United States. In many cases where an alien is seeking a visa as the beneficiary of a family-sponsored petition, the alien will need to have an affidavit of support submitted on his or her half to overcome the presumption of public charge. Additionally, the Immigration and Nationality Act (INA) contains a deportability ground for aliens who become public charges under certain circumstances subsequent to admission.

In this article, we will examine the concept of public charge. To do so, we will rely upon the relevant statutes, regulations, and administrative guidance from the United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS). Please see the conclusion [see section] for a list of our companion articles relating to public charge.

Public Charge Inadmissibility Ground in Statute (INA 212(a)(4))

The public charge ground of inadmissibility is found in section 212(a)(4) of the Immigration and Nationality Act (INA).

Section 212(a)(4)(A) renders inadmissible any alien who is deemed likely at any time to become a public charge. This inadmissibility determination can be made by a consular officer at the time of an application for a visa through consular processing, or by the Secretary of Homeland Security at the time of an application for admission or for adjustment of status.

In determining whether an alien is likely to become a public charge, section 212(a)(4)(B)(i) requires that the adjudicator consider the following factors at a minimum: The alien's -

Age;
Health;
Family status;
Assets, resources, and financial status; and
Education and skills.

Under section 212(a)(4)(B)(ii), an affidavit of support may be considered as evidence that an alien is unlikely to become a public charge. In fact, there are many situations in which an affidavit of support must be submitted on behalf of the beneficiary of an immigrant visa petition in order for the petition to be approvable. Please see the relevant section of this article to learn more [see section].

Deportability Provision

Under section 237(a)(5), an alien who becomes a public charge within five years after the date of entry “from causes not affirmatively shown to have arisen since entry” is deportable. This means that if an alien becomes a public charge within five years after the date of entry and cannot show that the reasons for becoming a public charge arose subsequent to entry, he or she may be subject to removal proceedings. Please see our full article to learn more about removal on public charge grounds [see article].

Definition of Public Charge by Relevant Agencies

The USCIS provides a definition of “public charge,” in both the inadmissibility and deportability contexts, in the “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds” [64 FR 28689 (May 26, 1999)]. The guidance takes the position that “'public charge' means an alien who has become (for deportation purposes) or who is likely to become (for admission/adjustment purposes) 'primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.'” It adds that “[i]nstitutionalization for short periods of rehabilitation does not constitute such primary dependence.” Although the aforementioned guidance is dated, the USCIS relied upon its definition in its “Public Charge Fact Sheet” [link], which was first issued on April 29, 2011, and last updated on November 15, 2013.

Where the Presumption of Public Charge Exists and when the Affidavit of Support is Required

Under section 212(a)(4)(C) of the INA, an alien seeking an immigrant visa (whether through consular processing or adjustment of status) under section 201(b)(2) or 203(a) of the INA is generally required to overcome the presumption of public charge. Section 201(b)(2) sets forth the immigrant visa category for immediate relatives of U.S. citizens. Section 203(a) sets forth the family-sponsored preference categories [see category]. Under section 212(a)(4)(C)(ii), an alien who is subject to the presumption of public charge must have an affidavit of support submitted on his or her behalf under section 213A of the INA [jump to section].

Under section 212(a)(4)(C)(i), the following aliens are explicitly exempt from the presumption of public charge:

I. An alien who obtained status as the spouse or child of a U.S. citizen under section 204(a)(1)(B)(ii), (iii), or (iv);
II. An alien who obtained status under section 204(a)(1)(B)(ii) or (iii) (pertaining to VAWA); or
III. An alien has obtained status as a VAWA self-petitioner [see category].

The construction of the statute means that, in general, family-sponsored beneficiaries who are not described by section 212(a)(4)(C)(i) need an affidavit of support exercised on their behalf in order to be approved for an immigrant visa The affidavit of support requirement applies to most beneficiaries of immediate relative and family-sponsored preference petitions.

Generally, employment-based immigrant visa applicants [see category] are not subject to the presumption of public charge. However, section 212(a)(4)(D) of the INA sets forth a limited circumstance in which an employment-based petition beneficiary is subject to the presumption of public charge. Under this provision, any alien who seeks an immigrant visa (whether through adjustment of status or consular processing) under section 203(b) (employment-based preference categories) by virtue of a petition for classification filed by the alien's relative, or by an entity in which such relative has a significant ownership interest, is subject to the presumption of public charge. This means that the alien would be inadmissible in such a case without the petitioning relative executing an affidavit of support under section 213A under his or her behalf.

The USCIS Policy Manual (USCIS-PM) at 7 USCIS-PM 6.A [link] lists situations in which the affidavit of support is not required for adjustment of status or in cases otherwise adjudicated by the USCIS:

The applicant has earned or can be credited with 40 qualifying quarters (credits) of work in the United States under the Social Security Act;
The applicant is an intending immigrant child who will become a U.S. citizen immediately upon entry under the Child Citizenship Act of 2000 (CCA) (see section 320 of the INA);
The applicant is the widow(er) of a U.S. citizen (see above); or
The applicant is a VAWA self-petitioner or derivative child (see above).

The DOS addresses in detail situations where children will be admitted and immediately become U.S. citizens upon admission. In the DOS's Foreign Affairs Manual (FAM) at 9 FAM 302.8-2(B)(2)(d)(1) [link], the DOS explains that section 320 (see the CCA provision on the above list) encompasses:

An orphan classified as IR3, provided that he or she will be admitted to the United States while under the age of 18 and will be in the legal and physical custody of an adoptive U.S. citizen parent as of the time of admission;
An adopted child classified as IR2 who meets the requirements of section 101(b)(1)(E) of the INA and will be admitted to the United States while under the age of 18 and will be in the legal and physical custody of an adoptive U.S. citizen parent as of the time of admission; and
A child classified as IR2 born (in or out of wedlock) to a parent who is now a U.S. citizen, provided that he or she will be admitted to the United States while under the age of 18 and that he or she will be residing permanently in the United States in the legal and physical custody of the U.S. citizen parent as of the time of admission.

In the above cases, the alien should submit the Form I-864W, Intending Immigrant's Affidavit of Support Exemption. The DOS explains that family-based immigrants, including biological and adopted children of U.S. citizens who are not eligible for immediate naturalization, are subject to the affidavit of support requirement.

The USCIS-PM then lists cases where the public charge ground of inadmissibility is inapplicable:

The application for an immigrant visa or for adjustment of status was filed before December 19, 1997 and is described in 8 C.F.R. 213a.2(a)(2)(i) or (a)(2)(ii)(B)) (which includes immediate relatives, family-based immigrants described in section 203(a) of the INA, employment-based immigrants described in section 212(a)(4)(D), or which is described by 8 C.F.R. 213a.2(a)(2)(i) and is issued a visa after December 19, 1997, on the basis of an application filed before that date);
The applicant is a diversity visa immigrant;
The applicant is a special immigrant juvenile [see category] (see section 245(h) of the INA);
The applicant is a refugee [see category] or asylee [see category] applying for adjustment of status (see section 209(c) of the INA);
The applicant is an employment-based immigrant (except as described by section 212(a)(4)(D) of the INA, see above);
The applicant is a foreign national granted T nonimmigrant status [see article];
The applicant is a foreign national granted U nonimmigrant status (see sections 101(a)(15)(U) and 212(a)(4)(E) of the INA) [see category]; and
The applicant is one of certain qualified aliens under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA).

In the above cases, the applicant need not file a Form I-864, Affidavit of Support or Form I-864W.

The DOS makes clear that K visa applicants are not subject to the affidavit of support requirement when seeking a visa through consular processing. However, they are required to submit an affidavit of support when seeking adjustment of status with the USCIS. The requirement that an affidavit of support be filed as part of the adjustment of status application is found in 8 C.F.R. 213a.2

In addition to the scenarios listed above, the USCIS posted a list of other benefits adjudicated by the USCIS that are either exempt from public charge considerations, or for which an applicant may procure a waiver for public charge. This document, titled “Public Charge,” was last updated on September 3, 2009 [link]. We include below the entries on the list that do not explicitly duplicate those found in the authoritative USCIS-PM and FAM:

1. Amerasian Immigrants (for initial admission);
2. Individuals granted relief under the Cuban Adjustment Act (CAA) [but see article on effective limitation of this path to status going forward];
3. Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA);
4. Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA);
5. Applicants for Temporary Protected Status (TPS) [see category]; and
6. Certain applicants under the LIFE Act Provisions.

In these cases, one should consult with an experienced immigration attorney for guidance regarding the applicability or non-applicability of public charge to his or her specific case.

General Note on Applicability to Other Nonimmigrants

At 9 FAM 302.8-2(B)(2)(a), the DOS notes that section 212(a)(4) “applies to all alien seeking entry into the United States, with a few exceptions.” We noted many of the exceptions in the foregoing sections of this article. The broad applicability of section 212(a)(4) means that the inadmissibility ground also applies to nonimmigrants that we have not discussed directly in the article. As a result, a nonimmigrant who is not subject to the affidavit of support requirement may nevertheless be denied a visa or denied admission on public charge grounds. However, the DOS notes that the amount of evidence required for an immigrant visa applicant to overcome public charge concerns “is much greater than that required in a nonimmigrant case.”

Public Benefits Subject to Public Charge Considerations

Not all government benefits are subject to public charge consideration. In general, public charge applies to certain means-tested public benefits. The FAM at 9 FAM 302.8-2(B)(1)(b) explains that the following benefits are subject to public charge considerations:

1. Supplemental security income (SSI);
2. Cash temporary assistance for needy families (TANF), but not including supplemental cash benefits or any non-cash benefits provided under TANF; and
3. State and local cash assistance programs that provide for income maintenance (often called general assistance).

However, the USCIS Fact Sheet on Public Charge explains that, under 64 FR 28689, acceptance of these means-tested benefits does not instantly render an individual inadmissible, ineligible to adjust status, or deportable on public charge grounds. Rather, each determination is made on a case-by-case basis.

Both the USCIS and DOS explain that accepting public assistance, including Medicaid, for “institutionalization for long term care” may trigger public charge considerations when considered on a case-by-case basis in light of the totality of the circumstances. The FAM explains that “institutionalization for long-term care” refers to care for an indefinite period of time for mental or other health reasons. It does not refer to temporary rehabilitative or recuperative care even if such care may last for weeks or months. The distinguishing factor is that institutionalization for long term care refers to care for an indefinite period of time.

The FAM explains that the acceptance of benefits from the following programs does not implicate public charge concerns (some entries in the following list is are supplemented by examples from the USCIS Public Charge Fact Sheet):

a. The Food Stamp Program;
b. The Medicaid Program (other than payments under Medicaid for long-term institutional care);
c. The Child Health Insurance Program (CHIP);
d. Emergency medical services;
e. The Women, Infants and Children (WIC) Program;
f. Other nutrition and food assistance programs (e.g., National School Lunch and Breakfast Program);
g. Other health and medical benefits;
h. Child-care benefits;
i. Foster care and adoption assistance;
j. Transportation vouchers;
k. Job training programs;
l. Energy assistance, such as the low-income home energy assistance program (LIHEAP);
m. Educational assistance, such as Head Start or aid for elementary, secondary, or higher education;
n. Job training;
o. In-kind emergency community services, such as soup kitchens and crisis counseling;
p. State and local programs that serve the same purposes as the Federal-in-kind programs listed above; and
q. Any other Federal, State, or local program under which benefits are paid in-kind, by voucher[,] or by any means other than payment of cash benefits to the eligible person for income maintenance.

The USCIS Public Charge Fact Sheet also includes housing benefits and unemployment compensation on its list of assistance sources that do not trigger public charge concerns.

The FAM further explains that the characteristic that distinguishes programs that do not implicate public charge is that they provide cash for reasons other than as a primary source of income maintenance. This is why, for example, programs such as help for transportation or child care benefits paid in cash, or one-time emergency payments made under TANF to avoid the need for on-going cash assistance, do not implicate public charge.

Additionally, the FAM explains that cash benefits that have been earned are not considered public cash assistance for the purposes of public charge (this is also noted on the USCIS Fact Sheet). These benefits include:

Social Security payments;
Old Age Survivors Disability Insurance (OASDI);
U.S. Government pension benefits; and
Veterans Benefits.

The acceptance of benefits that are subject to Public Charge considerations also renders the sponsor who signed the affidavit of support — if applicable — liable for repayment. Please see our “additional resources” at the bottom of the article for guidance on sponsor liability.

In general, an alien should consult with an experienced immigration attorney if he or she is unsure if accepting a certain benefit will cause problems relating to inadmissibility, deportability, or general ineligibility for future immigration benefits.

Conclusion and Additional Resources

Public charge concerns arise in multiple contexts. The first occurs when seeking a visa through consular processing or in seeking adjustment of status from inside the United States. The second, and related, occurs when seeking admission. The third occurs in the deportability context, wherein an alien may become deportable for having become a public charge subsequent to admission. Finally, an alien may accrue public charge concerns for the purpose of seeking future benefits while inside the United States.

In seeking an immigrant visa, public charge is most significant in the family immigration context, outside of the limited cases where the affidavit of support requirement does not apply. In such cases, the affidavit of support is generally required in order to overcome the presumption of public charge.

To learn more about public charge, please see the related articles on site:

Affidavit of Support [see article];
Sponsor Liability [see article];
Overcoming the Presumption of Public Charge [see article]; and
Deportability on Public Charge Grounds [see article].