Public Charge

 

Introduction

public chargeIn order to be considered admissible to the United States, most applicants for nonimmigrant and immigrant status are required to demonstrate that they will not become public charges.1 In scenarios in which an immigrant visa petition or adjustment of status process is based on a petition filed by a family member, or family member has a significant ownership stake in the petitioning employer (for an immigrant visa or adjustment of status), the application generally requires an affidavit of support from the family member, and the applicant will likely face a higher presumption of public charge than in most other cases. Properly filed affidavits of support, where required, will generally allow immigrant visa or adjustment of status applicants to demonstrate that they are sufficiently unlikely to become public charges. Affidavits of support are generally not required for employment-based immigrant visa or adjustment of status applicants, except when the sponsor is a lawful permanent resident (LPR) or U.S. citizen family member, or the family member has a significant ownership stake in the petitioning business entity.

Definition of Public Charge

“Public Charge” is defined in Department of State (DOS) and United States Immigration and Citizenship Services (USCIS) as a situation in which someone who receives an immigration benefit is “likely to become primarily dependent on the government for subsidence” either due to requiring public cash assistance or “institutionalization for long-term care at government expense.”2

Benefits subject to consideration for public charge tend to be means-tested federal and state benefits. A USCIS fact sheet from 20113 notes that receipt of Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF), or state or local general assistance programs may render an applicant for an immigrant visa or adjustment of status inadmissible on public charge grounds. With regard to long-term care, the fact sheet explains that acceptance of public assistance such as Medicaid may be an adverse factor for an applicant seeking to demonstrate that he or she will not be a public charge. However, it adds that short-term institutionalization using public assistance will not be considered in determining whether a person is likely to become a public charge.

Courtesy of the fact sheet, some examples of benefits that will not be included in a public charge determination include:

  • Medicaid and other health services that are not supporting long-term institutional care;
  • Children's Health Insurance Program (CHIP);
  • Nutrition programs;
  • Housing benefits;
  • Child care services;
  • Energy assistance;
  • Emergency disaster relief;
  • Foster care and adoption assistance;
  • Educational assistance;
  • Job training programs;
  • In-kind, community based programs;

Generally, state and local programs similar to any of the programs on this list.

The fact sheet adds that benefits that have to be earned, such as Title II Social Security benefits, government pensions, and veteran's benefits, are not considered for public charge purposes. Unemployment compensation is also not considered for public charge purposes.

Evaluating Potential for Alien Becoming a Public Charge

INA § 212(a)(4)(B)(i)(I)-(V) sets forth five criteria that immigration authorities must consider in determining whether an alien is likely to, at any time, become a public charge:

  1. Age;
  2. Health;
  3. Family status;
  4. Assets, resources, and financial status; and
  5. Education and skills

The statute only requires that these factors be considered “at a minimum,” meaning that immigration authorities may consider additional adverse factors that indicate an applicant for an immigration benefit is likely to become a public charge. To counter any adverse factors, INA § 212(a)(4)(B)(ii) allows immigration authorities to consider an affidavit of support as evidence countering the presumption that the alien will become a public charge.

Prearranged Employment

Pursuant to regulations found in 8 C.F.R. 40.41(e), if an immigrant visa applicant is relying on an offer of prearranged employment to satisfy the requirement that he or she is unlikely to become a public charge, he or she must provide written confirmation of the prearranged employment from the prospective employer that is sworn and subscribed to before a notary public.

Affidavits of Support for Overcoming Public Charge for Family-Sponsored Immigrants

A family member acting on behalf of an alien applying for an immigrant visa or adjustment of status is required to execute an affidavit of support in order for the application to be approvable.4 The section on public charge restates this requirement in INA § 212(a)(4)(C)(ii), “[any family-based immigrant will be excludable unless] the person petitioning for the alien's admission and any additional sponsor … has executed an affidavit of support … with respect to such alien.” Provided that the affidavit of support demonstrates that the alien is not, considering all factors, likely to become a public charge, it will generally be sufficient to overcome the hurdle.5 However, family-sponsored immigrants and their prospective sponsors should consult with an experienced immigration attorney to ensure that the application and affidavit(s) of support are likely to demonstrate to the satisfaction of USCIS that the alien will be unlikely to become a public charge.

There are special cases set forth in INA § 212(a)(4)(C)(i) wherein, someone under a family-sponsored immigration category does not require an affidavit of support:

  • The family-sponsored immigrant has obtained status as a spouse or child of a U.S. citizen pursuant to clause (ii), (iii), or (iv) o section 204(a)(1)
  • Classification pursuant to clause (ii) or (iii) of section 204(a)(1)(B);
  • Classification or status as a Violence Against Women Act (VAWA) self-petitioner.

The statute includes exceptions from requiring an affidavit support for widowers (within two years of the death of the U.S. citizen spouse, or prior to remarrying, whichever happens first), persons who entered into what they thought was a legitimate marriage to a U.S. citizen where the marriage was only illegitimate on account of the U.S. citizen's bigamy, provisions for battered spouses and children, and parallel qualifications for those who married, intended to marry, or were battered by lawful permanent resident (LPR) spouses. Any persons in these categories who think that they may be exempt from the affidavit of support requirement should consult with an experienced immigration attorney. Family-based petitions where the beneficiary is a child of a U.S. citizen who will be immediately eligible for naturalization pursuant to INA § 320(a) also do not require an affidavit of support.6 Family-sponsored immigrants who have earned, or can be credited with, at least 40 quarters of coverage pursuant to regulations regarding the Social Security Act (SSA) are also exempt from the requirement for an affidavit of support.7 Persons in any of these categories must file an I-864W, Intending Immigrant's Affidavit of Support Exemption, in order to be exempt from the affidavit of support requirement.8 Please follow this link for more general situations where an affidavit of support is not needed.

Family-Sponsored Employment-Based Immigrants

Pursuant to INA § 212(a)(D), persons seeking employment-based immigrant visas where the petitioner is a relative or an entity in which the relative has a significant ownership interest must submit an affidavit of support executed by the relative. The statute does not list any exceptions for this requirement.

General Scenarios Where Public Charge Is or May be Inapplicable

Pursuant to INA § 212(a)(E)(i)-(iii), the requirements needed to overcome the presumption of public charge where otherwise required are only inapplicable in a few very select cases:

  • The alien is a VAWA self-petitioner;
  • The alien is an applicant for, or holder of, nonimmigrant status under INA § 101(a)(15)(U),9 or
  • The alien is a qualified alien described in section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 199610

USCIS lists other situations11 where applicants are either exempt from the public charge requirement, or may apply for a waiver from it:

  • Refugees, asylum applicants, and refugees and asylees applying for adjustment of status;
  • Amerasian immigrants (for initial admission)
  • Individuals granted relief under the Cuban Adjustment Act (CAA), Nicaraguan and Central American Relief Act (NACARA), or Hattian Refugee Immigration Fairness Act (HRIFA);
  • Individuals applying for T or U Visas and individuals on T or U status applying for adjustment of status;
  • Applicants for Temporary Protected Status (TPS);
  • Certain applicants under LIFE Act Provisions

Advice

Family-sponsored immigrants are well advised to consult with an experienced immigration attorney to make sure that they can prepare an application for an immigrant visa or adjustment of status that will, along with a properly filed affidavit of support, satisfy the requirement that they are not found likely to be a public charge. Any applicants applying for immigrant visas or adjustment of status who are not eligible to have the public charge requirement waived and who have adverse factors that may weigh in favor of the finding that they are likely to become a public charge should definitely consult with an experienced immigration attorney to determine whether there is any possible way to structure an application with a solid affidavit of support to satisfy the public charge requirement. Persons who are planning to apply for immigrant visas or adjustment of status should be aware that accepting benefits from certain means-tested public benefit programs may greatly complicate their eventual applications for lawful permanent resident (LPR) status.

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  1. INA § 212(a)(4)(A)
  2. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 75, citing Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 FR 28689 (May 26, 1999); 9 FAM 40.41 N1-2
  3. “Public Charge Fact Sheet,” USCIS, November 15, 2011 (retrieved on August 6, 2015), available at http://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet
  4. INA 213A(f)(5)(B)
  5. Kurzban 75, explaining that an affidavit of support in this situation will generally overcome the presumption of public charge unless it does not provide evidence that the alien would likely be a public charge under INA § 212(a)(4)(B)
  6. Kurzban 76, citing INA § 320(a); 8 C.F.R. § 213a.2(a)(2)(ii)(E); Memo, Cronin, Acting Ex. Assoc. Comm. Field Operations, HQ PGM 50/10 (May 17, 2001), published on AILA InfoNet at Doc. No. 01060821; Cable, DOS, 01-State-1050806 (June 16, 2001), published on AILA InfoNet at Doc. No. 01061691.
  7. Kurzban 76, citing Memo, Aytes, Acting Dir. Domestic Operations, USCIS, HQRPM 70/21.1.13 (June 27, 2006) at p.5, published on AILA InfoNet at Doc. No. 06063013; Memo, Croning, Acting Assoc. Comm. Office of Program (70/23.1) (Mar. 7, 2000), published on AILA InfoNet at Doc. No. 00032704.
  8. Kurzban 79, citing INA § 213A
  9. See our article on applying for U Visas for more information
  10. 8 U.S.C. 1641(c) [describing certain battered spouses and children]
  11. “Public Charge,” USCIS, September 3, 2009, (Retrieved on August 6, 2015), available at http://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 75-76, 79, Print. Treatises & Primers.

“Public Charge Fact Sheet,” USCIS, November 15, 2011 (retrieved on August 6, 2015), available at http://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet

“Public Charge,” USCIS, September 3, 2009 (Retrieved on August 6, 2015), available at http://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge