 State Letter #99-13
TO: STATE REFUGEE COORDINATORS
NATIONAL VOLUNTARY AGENCIES
OTHER INTERESTED PARTIES
FROM: Lavinia Limon, Director
Office of Refugee Resettlement
SUBJECT: 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, clarify 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.
Refugee Cash Assistance (RCA) and Refugee Medical Assistance (RMA) are not on the list of programs above. Accordingly, an otherwise eligible refugee can receive RCA and RMA under The Federal Refugee Resettlement Program and such receipt will not be considered by immigration officials as part of the public charge determinations for admission and adjustment. The INS has stated, however, that Cuban/Haitian entrants will only be exempt from public charge determinations if the statute under which they adjust status to lawful permanent resident status provides for a statutory exception to the public charge ground of inadmissibility. We expect that most Cubans will adjust under the Cuban Adjustment Act, and receipt of public cash assistance will not be an issue. However, for Haitians who are ineligible to adjust under the Haitian Refugee Immigration Fairness Act, receipt of cash assistance under TANF, and even under RCA, could be considered in the public charge totality of the circumstances test.
It should also be noted that a refugee who adjusts to lawful permanent resident status and then leaves the country for longer than 180 days, could theoretically be subject to a public charge inquiry and denied re-entry if the refugee fails to meet the public charge totality of the circumstances test. The INS has stated that public charge has never been a problem for refugees who travel and return to the U.S., and nothing in the welfare reform law or immigration reform law has changed this.
Because this policy area is complicated, we encourage grantees to become familiar with the NPRM and Field Guidance published in the Federal Register. A copy may be obtained from the Federal Register on line at "www.access.gpo.gov/nara/". We are also attaching a short summary of the new policy and a set of answers to frequently asked questions to help grantees/agencies better understand the details of these new public charge policies and which non-citizens may be affected.
If you need further clarification, please contact: Pamela Green-Smith, Division of Refugee
Self-Sufficiency, (202) 401-4531.
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