- The Guidance
In this article, we will examine an interesting legacy Immigration and Naturalization Service (INS) General Counsel (Genco) Opinion from 1994 addressing whether the acceptance of tenant relocation assistance by a student on F1 status would violate F1 student status and/or render the student a public charge. The Genco Opinion explains that the acceptance of such assistance would neither constitute a status violation nor render the student a public charge. The Genco Opinion offers a detailed analysis of the concept of public charge in explaining why this is so. Although the Genco Opinion is dated, its guidance is consistent with current policies, and it is therefore instructive in highlighting the type of public assistance that does not render one a public charge.
On this site, we cover the concept of public charge [see article] and the public charge deportability provision [see article] in great detail. We encourage you to read these full articles to understand the inadmissibility and deportability provisions for public charge in current law before reading the instant article.
In this article, we will example the following legal opinion: “Legal Opinion, Michael J. Creppy for Paul W. Virture, Acting General Counsel, Genco Opinion 94-13, (Feb. 17, 1994),” (see 1994 WL 1753117). This Genco Opinion was issued by the INS in response to a question by Richard C. Smith, who was the District Director, Seattle Washington.
The District Director asked the following questions of the INS General Counsel:
- A. Does a foreign student who lives in Seattle, Washington, violate his or her immigration status by accepting “tenant relocation assistance” when forced to move from a residence because of the demolition, substantial rehabilitation, or change of use of rental housing?
- B. Does a foreign student who lives in Seattle, Washington, become a public charge by accepting “tenant relocation assistance”?
The Genco Opinion explained that the city ordinance in question providing for “tenant relocation assistance” provided assistance for “low income tenants” who were forced to relocate as a result of the demotion, substantial rehabilitation, or change of use of rental housing. The ordinance required that an applicant for relief had to submit documentation establishing that he or she met the threshold for being considered “low income.” Evidence required to establish income included “wages, salary, tips, dividends, interest, and royalties.”
The Genco Opinion began by acknowledging that when certain F1 students filed the required Income Certification forms for tenant relocation assistance, they had certified an income that was below the minimum level of financial support that they had earlier been required to certify to their respective college or university prior to admission. Adequate financial support is required in order for an F1 student to remain in status. This requirement is found in the Department of Homeland Security (DHS) regulations in 8 C.F.R. 214.2(f)(1)(i)(B) and in the Department of State (DOS) regulation sat 22 C.F.R. 41.61(b)(1)(ii).
However, the Genco Opinion noted that certain financial benefits available to students that did not qualify as available income “for the purpose of relocating a household” under the Seattle ordinance.
To this effect, the Genco Opinion noted that F1 students may benefit from a variety of financial benefits which count toward demonstrating adequate financial resources for F1 purposes, but which would not be considered as income for purpose of eligibility for the Seattle ordinance for tenant relocation assistance. Such benefits may include scholarships, grants, or tuition waivers. Similarly, certain F1 students may benefit from “free or low cost room and/or board, personal wealth, free books or tutoring, or access to any one of a number of different services,”which also would not constitute income for relocation assistance purposes.
Accordingly, the Genco Opinion explained that the evidence of level of financial support required for a student to demonstrate adequate financial support for F1 purposes and the evidence of income required to demonstrate such support for eligibility for Seattle's then-existing provision for tenant relocation assistance were inconsistent. For this reason, an F1 student acceptance of tenant relocation assistance in Seattle would not be sufficient by itself to establish that he or she was out of status.
Nevertheless, F1 students should always exercise caution regarding their F1 student status. In the event of any questions about accepting financial assistance or regarding financial problems, an F1 student is well advised to consult with his or her Designated School Official (DSO) and an experienced immigration attorney for guidance.
The Genco Opinion's answer to question B is relevant not only to students, but to all individuals in the United States in nonimmigrant or immigrant status. The current provision for deportability on public charge grounds, section 237(a)(5) of the Immigration and Nationality Act (INA), applies to all aliens. However, in order to be deportable on public charge grounds, the following three conditions set forth in the Matter of B, 3 I&N Dec. 323, 326 (BIA, AG 1948), must be met with regard to the acceptance of a government benefit:
- The state or other governing body must impose a charge for services rendered;
- There must be a demand for repayment; and
- There must be a failure to pay the charges.
The Seattle ordinance in question in the Genco Opinion did not impose a charge or fee for tenant relocation assistance. It also did not obligate beneficiaries to repay the assistance. Therefore, acceptance of such assistance would not contribute to a finding that the alien was a public charge.
In the relevant section of our article on deportability for public charge grounds, we explain why section 237(a)(5) is rarely applied and why it generally only arises in family-sponsored immigration contexts where an affidavit of support is required [see section].
Additionally, we explain in our article on public charge that the type of housing assistance provided for in the Seattle ordinance is not considered in the public charge context under current laws and policies [see section].
Genco Opinion 94-13 provides a position on an interesting scenario involving F1 students. Although the opinion is dated, it follows the contours of current law and policy. As we advised in discussing the Genco Opinion's answer to the first question, F1 students should consult with their DSO and an experienced immigration attorney to address any questions relating to the maintenance of F1 student status.