Public Charge as Grounds for Inadmissibility and Deportability


Public charge is both a grounds of inadmissibility and deportability under the Immigration and Nationality Act (INA).

 

What does it mean to be a “public charge”?

Excellent question!  The term created a lot of confusion in the past, with people not knowing whether they could or should apply for public benefits and if they did, whether it would have a negative impact on immigration status.

 

In 1999, the INS, then under the Department of Justice, proposed a rule to amend the regulations governing the standards for these grounds and clearly defining the term.  The INS wanted to minimize any adverse health consequences that could result from people not seeking services and assistance needed.

 

The proposed rule defined a public charge as one “who has become . . . or who is likely to become . . . 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.”

  • Practice Tip: This definition has been subsequently used since the abolishment of the INS and creation of DHS.

 

Grounds of Inadmissibility – INA § 212(a)(4)(A): Any alien who, in the opinion of the consular officer at the time or application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

 

Who determines whether or not someone is/will be a public charge?

For a person applying for admission to the U.S., the determination may be made by either:

  • The Department of State consular officer at the time the visa application is adjudicated abroad; or
  • A DHS officer at the time of admission to the U.S.

 

A person applying for adjustment of status will also be subject to the determination made by the DHS officer who adjudicates his/her application for adjustment.

  • Practice Tip: Remember, the grounds of inadmissibility states that a person may not be admitted if at any time the officer thinks he/she is likely to become a public charge.  There is no specific time period!

 

What factors are considered when assessing whether a person may become a public charge?

The following are collectively considered when making a determination:

  • Age
  • Health
  • Family status
  • Assets
  • Resources
  • Financial status
  • Education
  • Skills

 

Can receiving any public benefit make someone a public charge?

No!  There are very specific benefits that may make a person inadmissible for being or likely to become a public charge.  They are:

  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Public assistance (e.g. Medicaid) used for long-term care
  • State and local cash assistance programs

 

Practice Tip: Receipt of one of these benefits alone will NOT make a person inadmissible.  The benefits being received will be considered with all of the factors listed above to make a determination.

 

The good news is that there are many, many more kinds of benefits that are not considered when making a public charge determination than those that are.  These include:

  • Short-term institutionalization for rehab
  • Medicaid and other health insurance services (except for long-term institutionalization, above)
  • Child Health Insurance Program (CHIP)
  • Nutrition programs such as:
    • Supplemental Nutritional Assistance Program (SNAP/Food Stamps)
    • Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
    • National School Lunch and Breakfast Program
  • Housing benefits
  • Child care services
  • Energy assistance (Low Income Home Energy Assistance Program – LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (e.g. Head Start Act)
  • Job training programs
  • Community-based assistance, such as soup kitchens, shelters, and crisis-counseling services
  • TANF non-cash assistance
  • Cash benefits earned through participation in a government program
    • Social Security
    • Government pension
    • Veteran’s benefits
  • Unemployment benefits

 

Grounds of Deportability – INA § 237(a)(5): Any alien who, within 5 years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable.

 

Practice Tip: Unlike the grounds of inadmissibility, the grounds of deportability are limited to the 5 year period after the person enters the United States.

 

What are the requirements for someone to be deported on these grounds?

In reality, very few foreign nationals have been deported under the public charge grounds because there are very narrow and strict requirements which must be fulfilled.

  1. The law must impose a debt for any services/assistance provided to the foreign national;
    1. Practice Tip: This means that the state or organization that provided assistance must be legally allowed to sue the person for payment of services.  This would usually be state programs that provide general cash/income assistance, and would not include TANF, SSI, Medicaid, or SNAP.
  2. The public entity (state or organization) must demand payment from the foreign national; AND
  3. The foreign national must refuse to pay.

 

Does it matter why the person received the assistance?

Yes.  A person can only be deported on these grounds if the 3 criteria above are fulfilled AND if the person is unable to show that the causes arose after his/her entry to the U.S.  A person being charged with deportability for becoming a public charge may provide evidence to show that his/her circumstances were attributed to some change in the U.S., such as becoming disabled or unemployed.

 

For more information, see the USCIS Public Charge Fact Sheet.