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Determination
that a person is a "public charge",
under U.S. immigration law, has been used as
a grounds for inadmissability and deportation
of immigrants for many years.
Recent immigration and welfare reform laws have
generated further confusion about the relationship
between the receipt of Federal, State, and local
public benefits and the definition of "public
charge" in immigration statutes and policies.
The DoJ decided to publish a proposed rule defining
what programs may be taken into consideration
by INS and others in arriving at a "public
charge" determination in order to reduce
the negative public health consequences produced
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.
New
"Public Charge" Definition |
The
new DoJ policy defines public charge to mean
an alien who has become (for purposes of deportation)
or is likely to become (for purposes of admissibility
or adjustment of immigration status) 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.
Totality
of the Circumstances Test
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The
NPRM states that receipt of cash welfare assistance
cannot automatically result in a public charge
inadmissability determination. The INS and DoJ
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 longer an alien has received cash income-maintenance
benefits in the past and the greater the amount
of benefits, the stronger the implication that
the alien is likely tobecome a public charge.
The negative implication of past receipt of
such benefits or past institutionalization,
however, may be overcome by positive factors
in the alien's case, demonstrating an ability
to be self-supporting. Past receipt of non-cash
benefits (other than institutionalization for
long-term care) will not be taken into account
under the totality of the circumstances test.
Benefits
Considered for Public Charge Purposes |
Cash
benefits for income maintenance, which can be
considered by immigration officials as part
of the public charge determinations, include
the following:
- Supplemental
Security Income
- Temporary
Assistance for Needy Families, not including
non-cash benefits and services such as child
care and transportation, or one-time emergency
payments to avoid the need for on-going cash
assistance, and;
- 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).
- Long-term
care benefits under Medicaid
Benefits
Not Considered for Public Charge Purposes
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The
HRSA programs, including all health center programs,
are not considered as a cash benefit for income
maintenance purposes. Programs that are not
considered as a cash benefit for income maintenance
purposes, and thus will not be considered by
immigration officials as part of the public
charge determinations, include:
- Health
center programs
- Medicaid,
except long-term care. Short periods of rehabilitation
are not to be considered.
-
Children's Health Insurance Program
- Immunizations
- Testing
and treatment of symptoms of communicable
diseases
- Prenatal
care
- 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
-
Emergency assistance, such as the Low Income
Home Energy Assistance Program
-
Emergency disaster relief
-
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
-
In-kind, community-based programs, services,
or assistance (such as soup kitchens, crisis
counseling and intervention, and short-term
shelter)
Eligible
non-citizens can use all of the services listed
above without fear that use of these services
will be considered evidence of public charge
status. Receipt of these non-cash services does
not affect the right of immigrants to be sponsors
of other immigrants under an affidavit of support.
Receipt
of Cash Welfare by Family Members |
Also,
the receipt of cash welfare assistance by family
members will not be considered relevant to public
charge determinations of an individual. 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. If parents enroll their
children in programs for which they are eligible,
the INS or State will not consider them to be
public charges unless these programs provide
the sole financial support for the family.
Exceptions
from Public Charge Determinations |
The
following are exempt from public charge determinations:
- Refugees
and asylees
- Amerasian
immigrants
- Applicants
under the Cuban Adjustment Act
-
Applicants under the Nicaraguan Relief Act
-
Applicants under the Haitian Refugee Immigration
Fairness Act
-
Lawful permanent residents who have been outside
the U.S. 180 days or less
The
BPHC encourages BPHC grantees to convey this
information to their patients and affiliating
service providers so that patients can take
full advantage of the services to which they
are entitled without fear of it affecting their
immigration status. Primary Care Associations
(PCAs) and health center programs may want to
take the following steps:
- Center
staff should be educated regarding these new
policies and how they affect the patients
they serve.
- Centers
should prepare signs and leaflets regarding
the new policies that are translated into
the languages spoken by the health center
patients.
- Outreach
workers and other center staff should convey
the information to the patients with whom
they interact and be prepared to answer questions
regarding the policy.
- The
PCAs and center staff and board members should
work with other advocacy and service organizations
providing services to immigrant families regarding
how to"get the word out"regarding these new policies.
It is also important to note that information
and support is available for centers and PCAs
from national organizations such as the National
Association of Community Health Centers.
Medicaid
and CHIP: It is important for health
centers to note that Medicaid (except long-term
care) and CHIP will also not be considered in
public charge determinations. We encourage centers
to enroll your eligible Medicaid and CHIP immigrant
patients and their children into these programs
so that you may receive the reimbursement afforded
under these programs for these patients, rather
than using limited BPHC funds targeted for uninsured
individuals.
Social
Services: It is also important for
center staff to convey to immigrant patients
that they are eligible for such programs as
WIC and housing assistance, and to refer them
for these services as appropriate.
We
encourage you to become familiar with the NPRM
and the Field Guidance published in the Federal
Register, which are available online
at http://www.hrsa.gov.
If you have any questions regarding how these
policies affect health center programs, please
contact Leigh Thurmond at (301) 594-4065.
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