By: Attorneys Robert L. Reeves and Marc R. Generazio
Many legal immigrants fear that if they receive various public benefits, United States Citizen and Immigration Service (USCIS) or the Department of State (DOS) will decide they are likely to become a “public charge”. A public charge finding may result in denial of permission to adjust to legal permanent resident status, denial of a visa to enter the United States, denial or re-admission to the United States after a trip abroad for more then six months, or in very rare circumstances, deportation. A “public charge” is an immigrant who is likely to become “primarily dependent on the government for subsistence.
USCIS issued some guidance that should greatly ease the public charge concerns for immigrants eligible for public benefits. USCIS allows receipt of any non-cash benefits (with the sole exception of institutionalization for long term care at government expense) which is NEVER a factor in public charge determination. Therefore, immigrants can accept Medicaid, food stamps, Women Infant Children (WIC), housing benefits, childcare subsidies or other non-cash benefits without endangering their immigration status.
There is a increasing concern on what is acceptable public assistance among those who are already legal permanent residents and those who are non-immigrants seeking permanent resident status.
In general, immigrants who are Legal Permanent Residents (LPR) are not subject to the public charge test. LPRs do not have to meet a public charge test to become citizens, and there is no public charge test for immigrants seeking to sponsor an immigrant. There are however, two exceptions to the general rule: 1) LPRs may be subject to a public charge test if they leave the country for more the 180 consecutive days and 2) in very rare circumstances, an LPR may be subject to deportation if they are determined to be a public charge within five years after entering the United States.
Immigrants who are not LPRs are more likely to face public charge scrutiny. The only types of public benefits relevant to a public charge determination are “public cash assistance for income expense or maintenance” or “institutionalization for long-term care at the government’s expense. No other public benefits are relevant to a public charge determination. USCIS mandates that USCIS officers not to consider receipt of non-cash public benefits. These include:
* Medicaid, Children’s Health Insurance Program (CHIP) and other health insurance and health services
* Food Stamps, Women Infants and Children (WIC), and other nutrition programs;
* Housing benefits;
* Childcare services;
* Energy assistance;
* Job training
* Educational assistance; and,
* Similar state and local programs.
It is important to note that not ALL cash benefits are relevant to a public charge determination. There is a distinction between “cash assistance for income maintenance” and other benefits that happen to be provided in the form of cash. Programs that provide cash assistance for income maintenance and may be deemed a factor in a public charge determination include:
* SSI
* Temporary Assistance for Need Families (TANF)
* State and local cash assistance programs for income aintenance.
Receipt of cash assistance for income maintenance by an immigrants’ family member is NOT attributable to the immigrant for public charge purposes unless the family is reliant on the benefits as its sole financial means of support.
If one has received cash assistance for income maintenance, USCIS will assess such assistance, as only one factor among many that must be considered in making a public charge determination. USCIS officers and consulates must consider the “totality of the circumstances”, including the immigrants age, health, family status, assets, resources, financial status, education, skills, the amount received, the length of time that has passed since the immigrant has relied on such assistance, and whether an affidavit of support exists. USCIS mandates that before an immigrant is determined to be a pubic charge an officer must articulate each of the factors in the totality of circumstances in their reasons for the denial.
On the other hand, if one is in the United States on a temporary visa such as an H-1B, H-4, F-1, B-1, B-2, etc., acceptance of any public assistance may bar them from obtaining a new visa. For example, the U.S. Embassy in Manila routinely asks non-immigrant visa applicants for proof of payment to the hospital for any U.S. born children before they issue a new visa.
If one has received or is considering receiving public benefits and they are seeking to become a legal permanent resident of the United States, they should consult an experienced immigration attorney to avoid any immigration consequence.
