By Charles Wheeler
Public charge can form the basis for denying admission to both intending immigrants and nonimmigrants. It may be used by Department of State (DOS) officials in their adjudicating immigrant and nonimmigrant visa applications and by the United States Citizenship and Immigration Services (USCIS) in their adjudicating adjustment of status applications. It is also a ground of deportation and can form the basis for removing an alien, although this is rarely employed. Public charge is not a factor in applications for naturalization, although applicants who have committed of welfare fraud could be denied for lack of good moral character requirement. This article will examine the public charge ground of inadmissibility and deportability with an emphasis on providing practical advice for overcoming this potential obstacle. It will attempt to answer the question of whether public charge is a significant problem for the intending immigrant due to the mandatory submission of affidavits of support and the emphasis on the sponsor’s income.
Brief History of the Public Charge Ground
The public charge ground of inadmissibility dates back to the first general immigration law. In1882 Congress excluded persons who were “idiots, lunatics, convicts, and persons likely to become a public charge.” In 1891, Congress added the term “paupers” to the list of persons subject to exclusion. A few years later, the Immigration and Naturalization Service (INS) Commissioner interpreted these provisions as authorizing the imposition of a poverty test to aliens seeking entry – they had to show that they possessed at least $25 in cash, plus sufficient funds to purchase a ticket to their final destination. Although that requirement was later rescinded, both the State Department and Immigration Service officers have been empowered for over a century to exclude persons who in their opinion were unable or unwilling to support themselves and other nuclear family members.
In 1915 the Supreme Court defined a public charge as a person who “by reason of poverty, insanity, disease or disability would become a charge upon the public.” For the first hundred years, the public charge ground of inadmissibility was used more than any other ground to deny entry or adjustment of status to intending immigrants.
Definition of Public Charge
The term “likely to become a public charge” has never been defined in the statute or regulations. As a result, DOS and INS officers exercised broad powers in interpreting this provision. Unfortunately, they sometimes applied different standards and imposed inconsistent requirements. For at least the two decades preceding the 1996 immigration law, most officers required the intending immigrant to demonstrate the ability, through an offer of employment or demonstrated work history, to earn at least 100 percent of the poverty income guidelines for their household size. During that period it was common for officers to require low income applicants to submit an affidavit of support, Form I-134. This was typically executed by the U.S. citizen or LPR petitioner or a close family member. These affidavits stated that the sponsor would support the intending immigrant for a three-year period, although several courts held them to be legally unenforceable by entities seeking reimbursement for the value of public benefits provided. Sponsors supplemented these affidavits with income tax returns and bank statements.
But in the mid-1990, some officers required additional proof that the intending immigrant and all family members – including U.S. citizen children – demonstrate that they were not receiving and had not received any form of public assistance. If they had received it, some officers conditioned the granting of their application on proof that they had repaid the value of these public benefits. This resulted in some U.S. citizen children living in mixed households being removed from supplemental food and health-related programs because the parents feared that receipt of these benefits would jeopardize their immigration status or eligibility for immigration benefits.
This lack of clarity and uniformity – and even overreaching on the part of some officers – resulted in the INS’s promulgating a memorandum, field guidance, and a proposed rule in the Federal Register in 1999 that clarified the meaning of the term “public charge.” The Department of State issued a cable to its consulates providing similar instruction. That cumulative guidance has been helpful in establishing clear standards for interpreting this ground of inadmissibility and deportability. It has also been helpful in clarifying the relationship between public charge and the receipt of certain public benefits. Regrettably, this formal guidance has not been strictly followed by all USCIS offices or consular posts.
According to the memorandum, field guidance, and proposed rule, an alien has become a public charge for inadmissibility or deportability purposes when he or she has become “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” The Service defined the term “public cash assistance for income maintenance” as including only three forms of benefits: (1) Supplemental Security Income (SSI) for the aged, blind, and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance; and (3) state and local cash assistance programs, usually known as general relief or general assistance. Programs that support aliens who are institutionalized for long-term care, including Medicaid, are typically provided to those in a nursing home or mental health institution. The proposed rule explains that “institutionalization for short periods of rehabilitation” does not fit this definition.
The intending immigrant’s receipt of non-cash benefits should not be taken into account when considering whether he or she is likely to become a public charge. This would include the following programs:
• Food Stamps
• Housing and rental assistance
• Medicaid (other than for the long-term institutionalized) and other health insurance and health services
• School lunch and school breakfast
• Nutritional programs for Women, Infants, and Children (WIC)
• State Child Health Insurance Program (SCHIP)
• Job training program
• Education assistance, including Head Start
• Low Income Home and Energy Assistance Program (LIHEAP)
• Foster care and adoption assistance
• Emergency disaster relief
• Federal education loans or grants, and
• In-kind, community-based programs, services, or assistance..
Programs that pay benefits that are “earned,” such as unemployment insurance, worker’s compensation, or Social Security retirement, disability, and Medicare, which are based in part on employee contributions, should also not be considered. Nor should government pensions, veterans’ benefits, or state and local programs that provide a health-related benefit. After passage of the Welfare Act in 1996, and even well before for some programs, aliens without lawful immigration status have been precluded from receiving most of these non-cash benefits.
Furthermore, receipt of benefits – including one of the three designated cash assistance programs – by household members other than the intending immigrant should not be considered by the DOS or INS/USCIS officer. For example, receipt of cash benefits by the alien’s parents or children should not be considered, nor should those received by the sponsor completing an affidavit of support. The only caveat is when the family is reliant on the public benefit as its sole means of support. In those situations, the intending immigrant may be considered to have received the benefit as well. Officers should never condition applicants’ admission or adjustment of status on the repayment of benefits received.
The May 1999 INS memorandum, field guidance, and proposed rule also point out that the determination of the likelihood of becoming a public charge is a prospective test and should include consideration of all of the factors set forth in the statute, as well as prior administrative decisions and regulations implementing the Immigration Reform and Control Act of 1986. These make up what is called the “totality of the circumstances test,” and are explained more fully below. Any officer who intends to deny an application based on public charge must weigh six statutory factors and “specifically articulate the reasons for the officer’s determination.” Past or even current receipt of one of the three cash assistance programs does not automatically mean that the alien is likely to become a public charge in the future. Rather, it is just one of the factors taken into consideration when making the forward-looking determination. When the applicant received the benefits and for how long a period will determine how much weight these factors should be given. Past receipt by the intending immigrant of non-cash benefits (other than institutionalization for long-term care), however, should not be considered.
Public Charge as Applied Today
The USCIS and State Department continue to apply a two-part test, which looks at both the intending immigrant’s likelihood of becoming a public charge and the sponsor’s likelihood of fulfilling his or her financial obligations.
The 1996 immigration law codified the totality of the circumstances test that had traditionally been applied to immigrant visa and adjustment applicants by INS and Department of State officials. According to the statute, those officials must take into consideration the following factors related to the intending immigrant: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. With respect to age, consular officials are instructed to consider any skills that applicants over the age of 16 possess that would make them employable in the United States. They should also consider any health-related ailment that would preclude or hinder the alien from working. If the alien is married and/or has children, the official should weigh the number of dependents he or she is responsible for supporting. With respect to work experience, the official should examine “the applicant’s skills, length of employment, and frequency of job changes” to determine whether the applicant will become self-sufficient shortly after entering the United States.
For almost the last half century, the general rule in determining public charge has been that intending immigrants who are able-bodied and employable will not be found to be inadmissible under this ground. The seminal case in this area held that “a healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where he has friends or relative in the United States who have indicated their ability and willingness to come to his assistance in case of emergency.” In contrast, however, an elderly person who has been receiving Supplemental Security Income (SSI), may have difficulty satisfying the test.
The last reported case discussing public charge, decided over 20 years ago, analyzed the factors and applied them generously to a legalization applicant. In that case, the applicant was a 33-year old mother of three, who had little work experience and whose family had received welfare payments for four years. Nevertheless, the Commissioner found that in light of her age, her ability to earn a living, and the reason for her past unemployment, which was to care for her pre-school-age children, she was not likely to become a public charge.
The same section of the 1996 law that codified the factors that must be considered also mandated the filing of the legally-enforceable affidavit of support. Since implementation of that requirement, the focus has shifted away from the intending immigrant and onto the sponsor. The sponsor must now demonstrate the ability to maintain the intending immigrant at a certain financial level through the submission of an affidavit of support, last year’s income tax return, and possibly other supporting documentation. Most officers do not consider the five factors indicated above or even the intending immigrant’s likelihood of becoming a public charge if the sponsor has submitted an affidavit of support that meets the minimum requirements. The State Department has acknowledged that the submission of Form I-864 “should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the ‘totality of the circumstances’ analysis.” In other words, the submission of the affidavit of support should obviate the need to weigh the five factors. Only in “an unusual case” or in situations where the applicant is exempted from submitting an affidavit of support (e.g., because he or she submits an I-864W based on 40 qualifying quarters or derivation of citizenship) should the five factors be considered.
Even in cases where the applicant has submitted an affidavit of support that satisfies the financial requirements, the USCIS and State Department officers have the discretionary power to require more proof that the sponsor has the financial ability to support the intending immigrant. They may exercise that in cases where there is a “significant public charge concern.” This has been defined as cases where the intending immigrant has advanced age, serious health problems, or mental or physical disabilities. Physical disabilities and handicaps or mental disorders will likely provide a basis for closer scrutiny by USCIS and State Department adjudicating officers. Courts in the distant past have upheld findings of inadmissibility for public charge due to deafness, heart disease, blindness, and senility.
One would assume that if the intending immigrant provides a convincing affidavit of support from a sponsor of adequate means, who will now be legally obligated to maintain the immigrant at a certain level above the poverty line, that the submission should satisfy the public charge test. This is bolstered by the fact that 1996 changes in welfare law now make most LPRs ineligible for federal means-tested benefits for their first five years, and perhaps well after that period, due to the enforcement of expanded sponsor-to-alien deeming of income rules. In other words, restrictions in welfare eligibility, coupled with legal enforceability of sponsorship agreements, should make it almost impossible for new immigrants to “become a charge upon the public,” even if they are old, in poor health, or unemployable. Hence, the ability of the intending immigrant to support himself or herself should be afforded less concern compared to the financial status of the sponsor.
However, in certain cases the USCIS and State Department continue to apply a two-part test that looks both at the sponsor’s ability and likelihood of fulfilling his or her financial obligations and at the intending immigrant’s likelihood of becoming dependent on cash assistance programs. In other words, the traditional public charge analysis is still applied in those situations, but it is commingled with one directed at the income and resources of the sponsor.
The Foreign Affairs Manual (FAM) has provided additional guidance on interpreting the public charge ground of inadmissibility. It states that the consular officer must not base a determination that the applicant is likely to become a public charge on “what if” type considerations. The determination must be based on “reasonable future projection of the alien’s present circumstances...which make it not merely possible, but likely, that the applicant will become a public charge.”
For example, it advises consular agents to be “flexible,” and to predicate public charge decisions on existing, specific facts. Applicants with income or funds that make them at or above the poverty income guidelines should be presumed admissible under INA § 212(a)(4); with those below the guidelines there arises a rebuttable presumption of inadmissibility. Public charge findings “should be based on a reasonable projection of present circumstances and officers should point to a factual set of circumstances which make it not merely possible but likely that the alien will become a public charge.”
A 1997 State Department directive instructs consular posts on the new affidavits of support and their use in determining public charge. It states that the mere fact that the sponsor has met the minimum requirement does not preclude a finding that the visa applicant is inadmissible as a public charge. Even if the affiant meets the minimum requirements, a consular officer may require additional evidence of income or assets, or may require a joint sponsor, if the demonstrated resources do not appear adequate to prevent the applicant from becoming a public charge. The memo states that if the applicant and his or her spouse or dependents are in good health and appear to be employable, an affidavit of support that meets the minimum income level should generally be considered adequate. If not, "closer scrutiny of the sponsor's ability to provide the requisite level of support may be necessary."
Aliens Not Subject to Public Charge
Certain categories of aliens are not subject to the public charge ground of inadmissibility and thus are not subject to the affidavit of support requirements. These include the following:
• Refugees and asylees
• Aliens adjusting under the Cuban Adjustment Act
• Aliens adjusting under the Nicaraguan Adjustment and Central American Relief Act
• Aliens adjusting under the Haitian Refugee Immigration Fairness Act
• Special immigrant juveniles applying for adjustment of status
• Applicants for cancellation of removal
• Lautenberg parolees seeking adjustment of status
• Applicants for registry.
Do not confuse the category of aliens not subject to public charge with those who are subject to public charge but are exempt from filing a binding Form I-864. For example, the affidavit of support requirements are not applicable to widows or widowers applying for LPR status based on a prior marriage to a U.S. citizen. However, the public charge ground of inadmissibility still applies. The same is true for victims of domestic violence immigrating under the Violence against Women Act (VAWA), although the USCIS does not consider benefits obtained while the applicant was in deferred action status. Other aliens exempt from the I-864 requirements but still subject to public charge would include fiancé(e)s, diversity visa lottery winners, parolees, and returning LPRs. They may be asked to submit the non-binding Form I-134, Affidavit of Support.
Public Charge Ground of Deportation
Although public charge also remains a ground of deportation, given the numerous factors that must be established by the Immigration and Customs Enforcement (ICE), it is rarely used as a way to remove an alien from the country.
Permanent resident aliens can only be removed for becoming a public charge if all of the following conditions are satisfied: (1) they became a public charge within five years of the date of last admission; (2) they received public cash assistance for income maintenance purposes; (3) the need for benefits was based on circumstances that existed before they entered; (4) the public cash assistance they received created a legal debt or obligation to repay; (5) they received a demand to repay the debt from the agency within five years of admission; and (6) they refused to repay it. As mentioned earlier, most LPRs are barred from receiving SSI and TANF benefits for a considerable period of time. More importantly, these federal cash assistance programs do not create legal debts to the recipients. The only benefit programs that could create a debt are state general relief or general assistance. In addition to making a demand for payment, the state benefit-providing entity must pursue all possible collection remedies, including filing a court action and seeking to enforce a final judgment.
The 1996 immigration legislation did not change the public charge ground of deportation, and thus it will still be very difficult for the ICE to deport an alien for becoming a public charge. While the affidavit of support creates a legal debt when the sponsored immigrant receives means-tested benefits, such a debt is incurred by the sponsor, not the immigrant.