Civil
Rights
Non Citizens
INS Question and Answer Document on Public Charge
(copy)
GENERAL
Q1: Why are the Department of Justice (DOJ)
and the Immigration and Naturalization Service (INS) issuing
field guidance and a proposed regulation concerning public
charge, and what is the effect of these documents?
A1: DOJ and INS are issuing this guidance and proposed
regulation to alleviate growing public confusion over the meaning
of the currently undefined term "public charge" in
immigration law and its relationship to the receipt of Federal,
State, or local public benefits. By defining "public charge," DOJ
seeks to reduce the negative public health consequences generated
by the existing confusion and to provide aliens with better guidance
as to the types of public benefits that will and will not be
considered in public charge determinations. The guidance defines "public
charge" and gives examples of benefits that will and will
not be considered by INS officials for public charge purposes.
It also summarizes the existing law regarding public charge and
explains how the INS will administer these provisions.
Q2: What does it mean to be a public charge
under the immigration laws?
A2: An alien who is likely at any time to become
a public charge is ineligible for admission to the U.S. and is
ineligible to adjust status to become a lawful permanent resident.
An alien who has become a public charge can also be deported
from the U.S., although this very rarely happens. These provisions
have been part of U.S. immigration law for over 100 years, and
the recent immigration reform and welfare reform laws did not
substantively change them. Both INS (in the U.S.) and the Department
of State (State) (overseas) make public charge determinations.
Q3: How is public charge defined, and when will
this definition be implemented?
A3: The INS is issuing guidance and a proposed
regulation that define public charge for the first time. "Public
charge means an alien who has become (for deportation purposes)
or who is likely to become (for admission/adjustment purposes)
primarily dependent on the government for subsistence. This definition
is effective immediately. As discussed below, INS and State will
consider the receipt of cash benefits for income maintenance
purposes and institutionalization for long-term care at government
expense in determining dependence on the government for subsistence.
IMPLEMENTATION
Q4: How do INS and State decide whether someone
is admissible or eligible for adjustment of status under the
public charge rules?
A4: In deciding whether an alien is likely to become
a public charge, the law requires that the INS (in the U.S.)
or State (overseas) take certain factors into account, including
the alien's age, health, family status, assets, resources, financial
status, education and skills. The government official examines
all of these factors, looking at the totality of the circumstances
concerning the alien, to make a forward-looking decision. No
single factor, other than the lack of an Affidavit of Support,
if required, will be used as the sole basis for finding that
someone is likely to become a public charge, that is, likely
to become primarily dependent on the government for subsistence.
As described below, non-cash benefits and certain special-purpose
cash benefits will not be taken into account under the totality
of circumstances test.
Q5: How does INS decide whether someone is deportable
as a public charge?
A5: Deportations on public charge grounds are very
rare because the standards are very strict. Under the Immigration
and Nationality Act, an alien is deportable if he or she becomes
a public charge within 5 years after the date of entry into the
U.S. for reasons not affirmatively shown to have arisen since
entry. The mere receipt of a public benefit within 5 years of
entry does not make an alien deportable as a public charge. An
alien is deportable only if (1) the state or other government
entity that provides the benefit has the legal right to seek
repayment from the alien or another obligated party (for example,
a sponsor under an affidavit of support), (2) the responsible
program officials make a demand for repayment; and (3) the alien
or other obligated party, such as the alien's sponsor, fails
to repay. The benefit granting agency must seek repayment within
5 years of the alien's entry into the United States, obtain a
final judgment, take all steps necessary to collect on that judgment,
and be unsuccessful in those attempts. Even if these conditions
are met, the alien has the opportunity to show that the reasons
he or she became a public charge arose after the alien's entry
to the U.S. An alien who can make such a showing is not deportable
as a public charge.
Q6: What kind of benefits are considered in
deciding whether someone is or is likely to become a public
charge?
A6: Not all publicly funded benefits are relevant
to deciding whether someone is or is likely to become a public
charge. INS' guidance and proposed regulation clarify what kinds
of benefits may and may not be considered in making a public
charge determination. In order to decide whether an alien has
become or is likely to become a public charge, INS and State
will consider whether the alien is likely to become primarily
dependent on the government for subsistence as demonstrated by
either (1) the receipt of public cash assistance for income maintenance
purposes, or (2) institutionalization for long-term care at government
expense (other than imprisonment for conviction of a crime).
Short-term institutionalization for rehabilitation is not taken
into account for public charge purposes.
Public benefits considered to be public cash
assistance for income maintenance include:
(1) Supplemental Security Income (SSI);
(2) Temporary Assistance for Needy Families (TANF),
but not including supplementary cash benefits excluded from the
term "assistance" under TANF program rules or any non-cash
benefits and services provided by the TANF program;
(3) State and local cash assistance programs for
income maintenance (often called state "General Assistance," but
which may exist under other names).
In addition, the costs for institutionalization
for long-term care, which may be provided under Medicaid or other
programs, may be considered in making public charge determinations.
While the receipt of these benefits may be considered
by INS and State for public charge purposes, having received
them does not automatically make someone a public charge. As
explained above, the totality of circumstances test applies for
admission and adjustment. For deportation, all of the procedural
requirements, described above, apply.
Q7: Are there public benefits that aliens can legally
receive without worrying that the INS and State will consider
them a public charge?
A7: Yes. Not all publicly funded benefits will
be considered by the INS or the State Department in deciding
whether someone is or is likely to become a public charge. The
focus of public charge is on cash benefits for income maintenance
and institutionalization for long-term care at government expense.
Examples of benefits that will not be considered for public charge
purposes include:
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Medicaid and other health insurance and health
services (including public assistance for immunizations and
for testing and treatment of symptoms of communicable diseases;
use of health clinics, prenatal care, etc.) other than support
for institutionalization for long-term care
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Children's Health Insurance Program (CHIP)
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Nutrition programs, including Food Stamps,
the Special Supplemental Nutrition Program for Women, Infants
and Children (WIC), the National School Lunch and Breakfast
programs, and other supplementary and emergency food assistance
programs
-
Housing assistance
-
Child care services
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Energy assistance, such as the Low Income Home
Energy Assistance Program (LIHEAP)
-
Emergency disaster relief
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Foster care and adoption assistance
-
Educational assistance, including benefits
under the Head Start Act and aid for elementary, secondary,
or higher education
-
Job training programs
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In-kind, community-based programs, services,
or assistance (such as soup
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kitchens, crisis counseling and intervention,
and short-term shelter).
Note that not all categories of aliens are eligible
to receive all of the types of benefits described above.
Q8: Do the INS and State consider all types
of cash assistance in deciding whether someone is a public
charge?
A8: No. INS and State only consider cash benefits
intended for income maintenance purposes. Some programs provide
cash benefits for special purposes, such as the Low Income Home
Energy Assistance Program (LIHEAP), transportation or child care
benefits provided in cash under TANF or the Child Care and Development
Block Grant (CCDBG), and one-time emergency payments made under
TANF to avoid the need for on-going cash assistance. These special-purpose
cash benefits are not for income maintenance and therefore are
not considered for public charge purposes.
Q9: Normally Food Stamp benefits are given in
the form of paper coupons or an electronic benefit card that
can be used at authorized stores to buy food. However, in a
few areas Food Stamp benefits are given in the form of cash.
If Food Stamp benefits are given in the form of cash, can those
benefits be considered for public charge purposes?
A9: No. Food Stamp benefits will not be considered
for public charge purposes regardless of the method of payment
because they are not intended for income maintenance.
Q10: Are health care benefits and enrollment
in health insurance programs like Medicaid and CHIP considered
for public charge purposes?
A10: No, not unless an alien is primarily dependent
on the government for subsistence as demonstrated by institutionalization
for long-term care at government expense. In particular, INS
and State will not consider participation in Medicaid or CHIP,
or similar state-funded programs, for public charge purposes.
This approach will help to safeguard public health, while still
allowing INS and State to identify people who are primarily dependent
on the government for subsistence by looking to the receipt of
public cash assistance for income maintenance. In addition, short-term
institutionalization for rehabilitation will not be considered
for public charge purposes.
Q11: Do the public charge field guidance and
regulation change the policy issued by the Food and Nutrition
Service for the WIC Program in WIC Policy Memorandum #98-7,
dated March 19, 1998, "Impact of Participation in the
WIC Program on Alien Status"?
A11: No. The new field guidance and regulation
on public charge are consistent with the WIC policy memorandum
issued in 1998. The WIC policy memorandum was developed based
on agreements reached with the INS and State. The new field guidance
and regulation merely restate and reinforce the agreement previously
reached on the impact of participation in the WIC Program and
alien status. As noted above, INS and State will not take WIC
participation into account for public charge purposes.
AFFIDAVIT OF SUPPORT
Q12: What is an affidavit of support, and who
is required to have one?
A12: The Personal Responsibility and Work Opportunity
Reconciliation Act and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Section 213A, created a
new requirement for all family-sponsored immigrants and those
employment-based immigrants who will work for a close relative
or for a firm in which a U.S. citizen or lawful permanent resident
relative holds a 5 percent or greater ownership interest. An
alien who applies for an immigrant visa or adjustment of status
in one of these categories on or after December 19, 1997, must
have an affidavit of support (AOS), INS Form I-864, from a qualifying
sponsor or he or she will be found inadmissible as a public charge.
An AOS is a legally binding promise that the sponsor will provide
support and assistance to the immigrant if necessary.
The AOS must be signed by a sponsor who meets certain
statutory requirements. Sponsors must be able to demonstrate
that they are able to maintain the sponsored alien(s) at an annual
income of not less than 125 percent of the federal poverty level.
(Currently, 125 percent of the poverty level for a family of
four is $20,875.) If the family member who filed the visa petition
does not have enough money to sponsor the alien(s), then another
person can sign an AOS as a joint sponsor, indicating that he
or she is willing to support the immigrant in the future if needed.
The sponsor's obligation under the AOS lasts until the immigrant
has naturalized, has worked or can be credited with 40 quarters
of work, leaves the U.S. permanently, or dies. The sponsor and
joint sponsor (if any) must also agree to repay the government
if the immigrant uses certain benefits during that time and if
the government asks the sponsor for repayment.
Before IIRIRA, aliens were sometimes sponsored
using INS Form I-134, but these affidavits of support were found
by some courts not to be legally enforceable. Form I-134 may
still be used for categories of aliens who are not required to
use the new, enforceable affidavit of support, such as students,
parolees, or diversity immigrants.
Q13: Can an affidavit of support help an
alien demonstrate to the INS and State that he or she is not
likely to become a public charge?
A13: Yes. Since many aliens who apply for an immigrant
visa or adjustment of status after December 19, 1997, will have
an affidavit of support, INS and State will take that into account
in deciding whether the alien is likely to become a public charge
in the future. Even though an AOS is necessary for some immigrants
and helps to convince the government that they will not become
dependent on the government for subsistence in the future, INS
or State can still deny an immigrant admission or adjustment
of status under the totality of circumstances test based on other
factors such as age, health, employment, and education, as described
above.
Q14: If lawful permanent residents want
to sponsor a relative to come to the U.S., will it hurt their
chances if they are receiving or have received public benefits
in the past?
A14: Sponsors are not subject to public charge
screening under the immigration laws; the question is whether
the alien being sponsored is likely to become a public charge.
Sponsors must satisfy a different test: they must be able to
demonstrate that they are able to maintain the sponsored immigrant(s)
at an annual income of not less than 125 percent of the federal
poverty level.
Q15: Why does the new INS affidavit of
support form ask about whether a sponsor or member of his or
her household has received means-tested public benefits in
the past 3 years?
A15: The purpose of this question is to ensure
that the INS or State official making the decision has access
to all facts that may be relevant in determining whether the
125 percent test, described above, is met. Any cash benefits
received by the sponsor, such as SSI or cash TANF, cannot be
counted toward meeting the 125 percent income threshold, but
they are not held against the sponsor if he or she can meet the
125 percent test through other resources. The receipt of other
means-tested public benefits, such as Food Stamps, Medicaid,
or CHIP , have no effect on sponsorship.
Q16: What happens if a sponsor who has
signed the new affidavit of support dies?
A16: The obligation to support the alien terminates
with the sponsor's death, but the sponsor's estate would still
be obligated to repay any obligations accrued before the sponsor's
death. If there is a joint sponsor and only one of the sponsors
dies, the remaining sponsor would remain liable under the affidavit
of support.
For deportation purposes, if a sponsor has died
and there is no joint sponsor, there is no legal obligation under
the affidavit of support to repay any means-tested benefits.
This means that the first prong of the test for deportation would
not be met and the sponsored alien would not become deportable
based on the affidavit of support.
EXAMPLE SITUATIONS
Q17: Are there categories of aliens who are
not subject to public charge determinations?
A17: Yes. Refugees and asylees are not subject
to public charge determinations for purposes of admission or
adjustment of status. Amerasian immigrants are also exempt from
the public charge ground of inadmissibility for their initial
admission to the U.S. In addition, various statutes contain exceptions
to the public charge ground of inadmissibility for aliens eligible
for adjustment of status under their provisions, including the
Cuban Adjustment Act, the Nicaraguan Adjustment and Central American
Relief Act (NACARA) and the Haitian Refugee Immigration Fairness
Act (HRIFA).
Q18: If an alien has received cash public benefits
in the past, but has stopped, will INS or State find that he
or she is likely to become a public charge?
A18: Past receipt of cash public benefits does
not automatically make an alien inadmissible as likely to become
a public charge. It is one factor that will be considered under
the totality of the circumstances test to decide whether the
alien is likely to become a public charge in the future. For
example, if an alien received benefits in the past during a period
of unemployment, but now has a job and is self-supporting, he
or she would most likely not be found inadmissible as a public
charge. The more time that has elapsed since the alien stopped
receiving the benefit, the less weight it will be given. The
length of time that an alien received benefits and the amount
of benefits received are also relevant considerations.
Q19: If an alien has received public benefits
in the past, does the alien have to repay them to avoid having
INS or State find that he or she inadmissible as a public charge,
or ineligible to adjust status and become a lawful permanent
resident?
A19: No. INS and State do not have authority to
request that aliens repay public benefits in connection with
visa issuance, admission, or adjustment of status.
Q20: Who decides whether an alien must repay
a public benefit he or she has received in the past?
A20: The requirements and procedures concerning
any demand for repayment of a public benefit are governed by
the specific program rules established by law and administered
by the benefit granting agencies, or by state and local governments,
not by INS or State. The public charge rules in the immigration
law do not change these program requirements.
Q21: If a member of an alien's family is receiving
or has received public benefits, but the individual alien hasn't,
will INS or State hold this against the alien for public charge
purposes?
A21: In most cases, no. As a general rule, receipt
of benefits by a member of an alien's family is not attributed
to the alien who is applying to INS or State for admission or
to INS for adjustment of status to determine whether he or she
is likely to become a public charge. The only time this general
rule would not apply would be if the family were reliant on their
family member's cash public benefits as its sole means of support.
In particular, alien parents do not have to worry
that the INS or State will consider them to be public charges
if they enroll their children in programs for which they are
eligible, unless these are cash programs which provide the sole
financial support for the family. This is true whether the children
are U.S. citizens or non-citizens.
If a parent enrolls in TANF for cash benefits for
the "child only," this could be used by INS or State
for a public charge determination concerning the parent if this
cash is the sole support for the family. However, if there are
other sources of support or a parent is working, then the cash
assistance would not represent the family's sole source of support.
Q22: If an alien receives public benefits, will
it hurt his or her chances to become a U.S. citizen?
A22: No. There is no public charge test for naturalization
purposes, so the receipt of benefits is not relevant, as long
as they were legally received. Nor is there a requirement to
repay benefits received in the past in order to qualify for citizenship.
Q23: Can a naturalized citizen lose his or her
citizenship because of receiving public benefits?
A23: No. Nobody can lose his or her citizenship
because of receiving public benefits. Once an immigrant becomes
a citizen, he or she can receive benefits on the same basis as
all other citizens. Citizens cannot be deported or barred from
reentering the U.S. after an international trip based on the
receipt of public benefits.
Q24: Does an alien have to stop participating
in some benefit programs in order to adjust status and become
a lawful permanent resident?
A24: No, but someone who is receiving a cash benefit
for income maintenance at the same time that he or she applies
to become a lawful permanent resident may be considered ineligible
for adjustment as a public charge. An alien who has received
a cash benefit in the past could reapply to the INS after he
or she stops receiving the benefit, and might or might not be
considered a public charge.
Someone who is receiving a non-cash benefit, for
example, WIC, Food Stamps, Medicaid, or CHIP , would not have
to stop participating in the program in order to be eligible
to adjust to lawful permanent resident status.
As explained earlier, in all of these situations,
the usual totality of the circumstances test would apply.
Q25: If a lawful permanent resident has received
public benefits and leaves the country, will INS stop him or
her from returning on public charge grounds?
A25: In general, a lawful permanent resident who
has been outside the U.S. for 6 months or less is not screened
for public charge purposes when he or she returns. This is because
lawful permanent residents who leave for 6 months or less at
a time are not considered applicants for admission when they
return, and none of the grounds of inadmissibility, including
public charge, apply to them.
There are exceptions to this general rule if :
(1) the alien has abandoned his or her status as a lawful permanent
resident; (2) the alien has engaged in certain illegal activity;
(3) the alien was in removal proceedings before he or she left
the country; or (4) the alien attempts to enter other than at
a port of entry. See INA section 101(a)(13)(C) for more details
on these exceptions.
Q26: Can an LPR continue to receive benefits
while he or she is out of the country?
A26: If an LPR plans to be out of the country for
longer than a month, he should check with the agency providing
the benefit to determine the rules. In general, people are not
allowed to receive many benefits if they are absent from the
country or state of residence for longer than 30 days. If an
LPR receives benefits improperly, it can hurt his chances of
re-entering the U.S. or becoming a citizen.
Q27: If a refugee has adjusted to LPR status
and then leaves the country for more than 180 days, is he or
she at risk of being found to be a public charge and denied
reentry?
A27: As noted above, refugees are exempt from public
charge determinations for their admission and adjustment to LPR
status. 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.
Q28: When an LPR returns from an international
trip, can INS make her pay back Medicaid or Food Stamps that
she or her children used before?
A28: No. INS does not have the authority to ask
immigrants to pay back these benefits. If an alien has received
benefits improperly (e.g., if a person claims to be a resident
of a state for purposes of eligibility when she is not a resident,
or if she does not tell a caseworker about all of her income),
it is up to the benefit-granting agency to request repayment,
based on the rules governing that program. Typically a benefit-granting
agency would only request repayment in situations involving fraud
or overpayment, and it would follow its procedural rules involving
notice to the individual and the right to appeal.
Q29: What if an alien has never used cash welfare
and is not residing in a nursing home. Can the INS still deny
him a green card because they think he might use cash welfare
in the future?
A29: Yes, it is possible. INS and State officials
must look at all of the factors listed above to determine if
a person can support himself in the future. If an alien's current
situation related to age, health, resources, and the other statutory
factors does not satisfy them that the alien is likely to be
able to be self-supporting in the future, then they can refuse
to grant a visa or approve adjustment of status, even if he is
not currently receiving public cash assistance.
Q30: What if a person is not receiving cash
assistance but is very sick and needs an extended period of
care in a nursing home or other long-term care institution?
Will she have trouble getting her Permanent Resident Card ("green
card")?
A30: Yes. If someone is living in a nursing home
or has a serious long-term illness that requires institutionalization,
she will probably have trouble getting a green card unless she
can show that she can get the care she needs without using Medicaid
or other government-funded health programs (e.g., county aid).
However, a short-term stay in a nursing facility, for example,
to physically rehabilitate after surgery, will not be used to
deny a green card. The alien is not deportable on public charge
grounds if the alien can show that she received benefits for
causes that arose after entry into the U.S.
Q31: An alien who is primarily dependent on
the government for subsistence as demonstrated by the institutionalization
for long-term care at government expense can be found deportable
as a public charge. Does this mean that INS will be conducting
raids in nursing homes or other long-term care institutions?
A31: No. INS will not send investigators into nursing
homes or other long-term care facilities to look for aliens who
might be deportable as public charges. INS may use information
concerning institutionalization if it comes to INS attention
through other avenues, but the only way an alien could be found
deportable is if all the procedural requirements described above
were met.
Q32: If I'm eligible to self-petition for adjustment
of status under the Violence Against Women Act (VAWA), do I
have to show that I'm not likely to become a public charge?
A32: The Administration is still considering the
extent to which self-petitioners under VAWA are subject to the
public charge requirements, and will address this in future guidance.
The law does make clear that self-petitioners under VAWA do not
need to submit an affidavit of support with their application,
unlike other family-based immigrants.
Q33: Cuban/Haitian entrants are eligible to
receive certain public benefits under welfare reform. If they
receive such benefits, will they be barred from adjusting status
because they will be considered public charges?
A33: The answer depends on how they become eligible
to adjust status. There are statutory exceptions to the public
charge ground of inadmissibility for those Cubans who are eligible
to adjust to lawful permanent resident status under the Cuban
Adjustment Act and NACARA and for those Haitians who are eligible
to adjust status under the HRIFA. Cuban/Haitian entrants are
subject to the usual public charge rules if they seek adjustment
under other provisions of law that do not contain public charge
exemptions.
Q34: Certain Amerasian entrants are eligible
to receive public benefits under welfare reform. If they receive
such benefits, will they be considered public charges?
A34: Amerasian entrants are admitted to the U.S.
as lawful permanent residents (LPRs), and they are exempt from
the public charge ground of inadmissibility at their initial
admission. In most cases, the issue of public charge would never
come up again, unless the alien leaves the U.S. for more than
6 months and seeks readmission. At that time, the exemption from
public charge screening would no longer apply and the alien would
be treated like any other LPR under the totality of the circumstances
test.
Q35: If an alien has been in the U.S. since
January 1, 1972, and wants to become a lawful permanent resident
under the registry provision of the Immigration and Nationality
Act, section 249, is there a public charge test?
A35: No. Public charge is not a factor for registry
aliens under section 249.
Q36: Is it improper for an immigration or consular
officer to ask non-citizens at an airport or in an interview
whether they have received public benefits in the past, or
whether someone in their family has?
A36: No. Immigration or consular officers can ask
questions about whether a non-citizen or someone in his or her
family is receiving or has received public benefits in the past.
Non-citizens should answer such questions completely and truthfully.
If an alien tells an immigration or consular officer that he
or she has received a benefit that is exempt from consideration
for public charge purposes, such as Food Stamps or Medicaid,
the officer will not use that information in deciding whether
the alien is likely to become a public charge.
Q37: INS is publishing this public charge definition
as a proposed rule for notice and comment. What happens if
an alien receives one of the safe benefits, that is, a supplemental,
non-cash benefit and the final rule is different from the proposed
rule, can aliens rely on the field guidance?
A37: Aliens may rely on INS field guidance in determining
the benefits that they may safely accept before the final rule
is issued. If the final rule is different from the proposed rule,
INS will issue additional guidance at that time designed to ensure
that non-citizens who relied on the current guidance will not
suffer harsher immigration consequences based on that reliance.
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