Subject: Guidance on Definition of "public Charge" in Immigration Laws
The
Department of Justice (DOJ) published in the Federal Register on
May 26, 1999 (64 FR 28676) a proposed rule 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 (64 FR 28689),
and the Department of State (DOS) has issued a cable to all embassies,
implementing immediately the policy set forth in the proposed rule.
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 proposed rule, along with the INS
guidance, clarifies the limited number of benefits that may be considered
by immigration officials in making public charge determinations.
With
regard to the Department of Housing and Urban Development (HUD),
the effect of the proposed rule and the INS guidance is to provide
that an otherwise eligible noncitizen can receive benefits/services
under HUD's programs and such receipt will not be considered by
immigration officials as part of a public charge determination.
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; (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 proposed rule and Guidance clarify that receipt of cash
welfare assistance (SSI, TANF, or State/local equivalents) cannot
automatically result in a public charge inadmissibility 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
INS also advises the following. First, deportations on public charge
grounds are rare and are expected to remain so. Second, an alien's
mere receipt of public cash assistance for income maintenance will
not make him or her deportable as a public charge. Finally, the
INS guidance reiterates other long-standing legal requirements that
must also be met before a public charge deportation can occur.
HUD's
programs are not listed above, and are not identified in the proposed
rule or the INS guidance as providing a cash benefit for income
maintenance purposes. Accordingly, receipt of benefits/services
under HUD's programs will not be considered by immigration officials
as part of a public charge determination.
Because
this policy area is complicated, we encourage grantees, and State
and local agencies, to become familiar with the proposed rule and
Field Guidance published in the Federal Register. Written comments
on the DOJ proposed rule must be submitted to the INS on or before
July 26, 1999. We are also attaching a short
summary of the new policy and a set of frequently
asked questions and answers, prepared by the INS, to help grantees,
and State and local agencies, better understand the details of these
new public charge policies and which noncitizens may be affected.
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