Colleague Letter Issued 5/26/99

Guidance on Definition of "Public Charge" in Immigration Laws

The Department of Justice (DoJ) published in the Federal Register on May 26, 1999 a Notice of Proposed Rulemaking (NPRM) that establishes clear standards governing whether an alien is inadmissible to the United States, ineligible to adjust immigration status, or has become deportable, on the grounds that he or she is likely to be or is a "public charge." The Immigration and Naturalization Service (INS) also published Field Guidance in the same Federal Register, and the Department of State (DoS) has issued a cable to all embassies, implementing immediately the policy set forth in the NPRM.

There has been some confusion among immigrant families, and service and benefit providers, regarding how the receipt of different benefits and services by immigrants and their family members will be treated for public charge purposes. The NPRM, along with the INS and DoS guidance, clarifies the limited number of benefits that may be considered by immigration officials in making public charge determinations.

The DoJ proposes to define public charge to mean an alien who has become (for purposes of deportation) or is likely to become (for purposes of admissibility or adjustment) "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." Cash benefits for income maintenance include the following: (1) Supplemental Security Income (SSI); (2) Temporary Assistance for Needy Families (TANF), but not including supplemental cash benefits excluded from the term "assistance" under TANF program rules or any non-cash benefits and services provided by the TANF program; and (3) State and local cash benefit programs that are for the purpose of income maintenance (often called "General Assistance" but which may exist under other names). The sole exception to the focus on cash assistance is an instance in which Medicaid or a related program would meet this definition by paying for the cost of a person's institutionalization for long-term care. The NPRM and Guidance clarify that receipt of cash welfare assistance (SSI, TANF, or State/local equivalents) cannot automatically result in a public charge inadmissability determination. The INS and DoS officers must still apply a "totality of the circumstances" test which may include receipt of cash assistance for income maintenance purposes, but also must include several mandatory factors, including age, health, family status, assets and resources, financial status, education, and skills.

The Developmental Disabilities programs are not listed above, and are not identified in the INS or DoJ guidance as providing a cash benefit for income maintenance purposes. Accordingly, an otherwise eligible noncitizen can receive services under the Developmental Disabilities Assistance and Bill of Rights Act, as amended, as such receipt will not be considered by immigration officials as part of the public charge determinations.

Because this policy area is complicated, we encourage grantees to become familiar with the NPRM and Field Guidance published in the Federal Register. We are also attaching a short summary of the new policy and a set of frequently asked questions and answers to help grantees/agencies better understand the details of these new public charge policies and which noncitizens may be affected.

If you need further clarification, please contact:
Elsbeth Wyatt, Program Specialist
Administration on Developmental Disabilities
(202) 690-5841

Sincerely,

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Sue Swenson
Commissioner
Administration on Developmental Disabilities