The Immigrant Policy Project

 

Public Charge Defined
05/26/99

INS Defines Public Charge

INS defined public charge in a 1999 regulation and provides examples of public benefits that will and will not be considered in public charge determinations. If an alien is found to be a "public charge", he or she may be 1) denied admission into the United States; 2) be ineligible to adjust his or her status to permanent resident; or 3) in rare cases, be deported.

The regulation was prompted by concerns that non citizens have been deterred from accessing critical benefits, such as medical assistance, nutrition programs, and disaster relief for fear that receipt of these public assistance programs would endanger their immigration status. This regulation specifically excludes medical and nutrition programs, including Medicaid, CHIP, and food stamps, from consideration in public charge determinations.

Definition of Public Charge

An alien who has become or 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."

Cash assistance is defined as Supplemental Security Income (SSI), cash Temporary Assistance for Needy Families (TANF), and state or local cash assistance programs (general assistance). Public assistance, including Medicaid, for immigrants institutionalized for long-term care will also be considered in a public charge analysis.

Examples of Benefits Excluded From Public Charge

The following non cash benefits and special purpose cash benefits are examples of benefits excluded from Public Charge consideration: Medicaid, CHIP, Food Stamps, WIC, immunizations, prenatal care, testing and treatment of communicable diseases, emergency medical assistance, emergency disaster relief, nutrition programs, housing assistance, energy assistance such as LIHEAP, child care services, foster care and adoption assistance, transportation vouchers, educational assistance including Head Start, job training programs, and non-cash benefits funded under the TANF program. Cash benefits that are short-term in nature and not used for income maintenance are also excluded, such as energy assistance, transportation, and child care benefits provided in cash under TANF or the Child Care Development Block Grant.

Admission and Adjustment of Status

Receipt of SSI, cash TANF, general assistance, or long-term institutional care could make a noncitizen a public charge. However, public charge determinations are made on a case-by-case basis, and other factors must be considered: age, health, family status, assets, resources, financial status, education and skills.

Deportation

An immigrant can be deported if he or she becomes a public charge within five years of entry from causes that existed before entry. The INS can deport an immigrant on public charge grounds only if the benefit granting agency has the legal authority to demand repayment, has sought repayment within five years of the immigrant's entry into the U.S., and the immigrant has failed to reimburse the agency.

When Public Charge Does Not Apply:

  • There is no public charge test for naturalization.
  • There is no public charge test for non citizens sponsoring relatives to enter the United States. The sponsor must sign a legally-binding affidavit of support; the income test of 125% of federal poverty level does apply to the sponsor; and public charge does apply to the relative seeking entry.
  • Benefits received by one family member are not attributable to other family members (e.g., TANF benefits to a child will not be attributed to the parent), unless the benefit provides the sole support of the family.
  • Refugees and asylees are exempt from public charge for purposes of admission or adjustment of status.
  • Amerasian immigrants are admitted to the U.S. as lawful permanent residents and are exempt from public charge for their initial admission to the United States.
  • Other exceptions exist for purposes of admission for those adjusting status under the Cuban Adjustment Act, the Nicaraguan Adjustment and Central American Relief Act, and the Haitian Refugee Immigration Fairness Act.
  • Public charge is not a factor those residing in the U.S. since January 1, 1972 who want to become lawful permanent residents under the registry provision.

NOTE: Immigrants arriving after August 22, 1996, are barred from accessing means-tested programs (TANF, SSI, Food Stamps, Medicaid and CHIP) for five years, which parallels the first five years of residence when public charge is applicable. Most newly arriving immigrants must also have an affidavit of support from their sponsor, a legally-binding document that requires the sponsor to support the immigrant.

Resource:  USCIS Public Charge Fact Sheet