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Civil
Rights
Non Citizens
Message from the Assistant Secretary for Aging
on the NPRM on "Public Charge"
May 26, 1999
Dear Colleague:
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.
Older Americans Act (OAA) programs administered by the Administration
on Aging (AoA) are not one of the programs listed above, and
are not identified in the INS or DoJ guidance as providing
a cash benefit for income maintenance purposes. Accordingly,
a non-citizen can receive benefits/services under OAA programs
administered by the AoA and such receipt will not be considered
by immigration officials as part of the public charge determinations.
State and area agencies on aging may also administer other
federal programs, such as the Medicaid waiver program, LIHEAP,
the Social Services Block Grant, as well as state and local
programs. Because this policy area is complicated, we encourage
you to become familiar with the NPRM and Field Guidance published
in the Federal Register. We are also enclosing a short
summary of the new policy and a set of frequently asked questions
and answers to help you better understand the details of these
new public charge policies and which non-citizens may be affected.
If you need further clarification, please contact
Harry Posman of my staff, who may be reached at (202) 619-7582,
or at harry.posman@aoa.gov.
Sincerely,
Jeanette C. Takamura
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