Recent pending changes in regulations of the Department of Homeland Security and Department of State affect whether a foreigner might become a U.S. “public charge” for immigration purposes. The DHS (the USCIS agency) has jurisdiction over foreigners who are in the U.S. applying for an immigration benefit. DOS (the US consulates) has jurisdiction over foreigners outside the U.S. who are applying for admission to the U.S.
Public Charge: Someone considered a risk of becoming a public charge is barred from obtaining an immigration benefit. In general, a public charge is someone who receives public benefits and can include a wide variety of benefits noted in the table below. However, the regulations instructing immigration officers how to determine whether someone might become a public charge for immigration purposes is nuanced and confusing.
When applying for a U.S. immigration benefit, the question is whether a foreigner might receive certain types of public charge benefits. Those benefits include cash income-maintenance benefits and government-funded institutionalization for long-term care. Cash assistance for income maintenance, according to USCIS guidance, “includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called ‘general assistance’ programs.” Notice in the table below there are many types of public charge benefits that are unrelated to whether a foreigner might obtain cash assistance or institutional long-term care. However, past receipt of public benefits listed below can cause an immigration officer to question whether the foreigner may become a public charge in the future. The scope of inquiry has broadened.
How to determine whether someone might become a Public Charge
DHS: Currently, an alien’s past or current receipt of cash income maintenance or government-funded long-term care does not automatically lead to a determination of inadmissibility, but instead only factors into the prospective analysis whether a foreigner might receive such benefits in the future. Notably, DHS does not consider an alien’s past or current receipt of other benefits when making public charge determinations for adjustment of status applicants—not even as a consideration under the totality of the circumstances test.
Receipt of benefits from state or local governments are treated similarly to the Federal programs. Those state and local programs that are not cash income maintenance or government funded long-term care should also be excluded from consideration for public charge purposes the same as applies to the Federal aid programs. 9 FAM 302.8-2(B)(1)(a) (“An applicant is likely to become a public charge if he or she is likely, at any time after admission, to become primarily dependent on the U.S. Government (Federal, state, or local) for subsistence. … This means … [r]eceipt of public cash assistance for income maintenance [or] … [i]nstitutionalization for long-term care at U.S. Government expense…. ”). 64 9 FAM 302.8-2(B)(2)(f)(1)
DOS: DOS maintains the same inquiry–whether a foreign applicant might receive cash income maintenance or government funded long-term care–but it’s review of the history of the foreign applicant is much broader. Now, DOS requires that consular officers consider past or current receipt of public benefits of any type by the foreigner or the foreigner’s family. Past receipt of any such benefits affects the totality of circumstances test.
Table 1. Public Benefits Considered in DHS and DOS Public Charge Determinations
DHS | DOS | |
Public Cash Benefits | ||
Supplemental Security Income (SSI) | Yes | Yes |
Temporary Assistance to Needy Families (TANF) | Yes | Yes |
State or local cash benefit programs for income maintenance | Yes | Yes |
Public Non-cash Benefits | ||
Programs (including Medicaid) supporting institutionalization for long-term at the government’s expense (e.g., a nursing home or mental health institution) | Yes | Yes |
Medicaid (other than long-term institutional care) | No | Yes |
Children’s Health Insurance Program (CHIP) | No | Yes |
Supplemental Nutrition Assistance Program (SNAP) | No | Yes |
Special Supplemental Nutrition Assistance Program for Women, Infants, and Children (WIC) | No | Yes |
Supplementary and emergency food assistance programs | No | Yes |
National School Lunch and School Breakfast Program | No | Yes |
Housing benefits | No | Yes |
Child care services | No | Yes |
Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP) | No | Yes |
Emergency disaster relief | No | Yes |
Foster care and adoption assistance | No | Yes |
Education assistance, Head Start Act, or aid for elementary, secondary, or higher education | No | Yes |
Job training and job-training programs | No | Yes |
In-kind emergency community services, such as soup kitchens and crisis counseling | No | Yes |
There appears to be an exemption of educational services to children with disabilities, active duty veterans and their families, people who have worked for 40 qualifying quarters, refugees, asylees, grants of withholding, and others. Also, there is an analysis of level of benefits received, differentiating between monetized and non-monetized benefits.
Monetizable benefits have a threshold of 15% of the federal poverty guidelines in 12 month period. The non-monetizable is 12 months use in a 36 month period. If the foreigner used both monetizable and non-monetizable, then the non-monetizable period is 9 months. If the foreigner uses 2 types of non-monetizable (for example, Medicaid and subsidized public housing), then each month will be counted as 2 months.
Monetizable benefits are:
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- General Assistance Cash Benefits
- Supplemental Nutrition Assistance Program (SNAP)
- Housing Programs:
- Section 8 Housing Choice Voucher Program
- Section 8 Project-Based Rental Assistance
Non-monetizable benefits are:
- Medicaid
- Description of Program
- Exceptions for Certain Medicaid Services
- Exception for Receipt of Medicaid by Foreign-Born Children of U.S. Citizens
- Institutionalization for Long-Term Care
- Premium and Cost Sharing Subsidies under Medicare Part D
- Subsidized Public Housing
Household is redefined in the Notice of Proposed Rule:
(d) Foreigner’s household. For purposes of public charge inadmissibility determinations under section 212(a)(4) of the Act:
(i) If the foreigner is 21 years of age or older, or under the age of 21 and married, the foreigner’s household includes:
(A) The foreigner;
(B) The foreigner’s spouse, if physically residing with the foreigner;
(C) The foreigner’s children, as defined in INA 101(b)(1), physically residing with the foreigner;
(D) The foreigner’s other children, as defined in section 101(b)(1) of the Act, not physically residing with the foreigner for whom the foreigner provides or is required to provide at least 50 percent of the children’s financial support, as evidenced by a child support order or agreement a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the foreigner;
(E) Any other individuals (including a spouse not physically residing with the foreigner) to whom the foreigner provides, or is required to provide, at least 50 percent of the individual’s financial support or who are listed as dependents on the foreigner’s federal income tax return; and
(F) Any individual who provides to the foreigner at least 50 percent of the foreigner’s financial support, or who lists the foreigner as a dependent on his or her federal income tax return.
(ii) If the foreigner is a child as defined in section 101(b)(1) of the Act, the foreigner’s household includes the following individuals:
(A) The foreigner;
(B) The foreigner’s children as defined in section 101(b)(1) of the INA physically residing with the foreigner;
(C) The foreigner’s other children as defined in section 101(b)(1) of the INA not physically residing with the foreigner for whom the foreigner provides or is required to provide at least 50 percent of the children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the foreigner;
(D) The foreigner’s parents, legal guardians, or any other individual providing or required to provide at least 50 percent of the foreigner’s financial support to the foreigner as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided to the foreigner;
(E) The parents’ or legal guardians’ other children as defined in section 101(b)(1) of the INA physically residing with the foreigner;
(F) The foreigner’s parents’ or legal guardians’ other children as defined in section 101(b)(1) of the INA, not physically residing with the foreigner for whom the parent or legal guardian provides or is required to provide at least 50 percent of the other children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the parents or legal guardians; and
(G) Any other individuals to whom the foreigner’s parents or legal guardians provide, or are required to provide at least 50 percent of the individuals’ financial support or who are listed as a dependent on the parent’s or legal guardian’s federal income tax return.
In essence, the pending regulatory changes are complicated.
Call Us for a Free Immigration Consultation / Case Assessment
1-888-483-0311
U.S. TOLL FREE
+1 212-483-0311
OUTSIDE U.S.
If you have an interest in working with us on case processing, please complete our free consultation form, and we’ll give you personal attention.
Leave a Reply