Afghans and Public Charge
* Tanya Broder from the National Immigration Law Center assisted with this article.
Determining if your client is likely to face a public charge problem has been challenging over the last couple years, given the changing landscape. Applying the current standard to Afghans who have recently arrived or are seeking entry as parolees is not any easier. To understand how the public charge policy factors into the equation, it is necessary to identify the Afghan client’s immigration category.
Practitioners who regularly assist clients in the family-based immigration context may be less familiar with how public charge issues affect applicants or grantees of Special Immigrant Visa (SIV), humanitarian parole, and asylum. Complicating matters are the various non-citizen eligibility requirements for federal public benefit programs. Let’s start by identifying the most common immigration classifications for your Afghan clients: (1) SIV grantees and applicants; (2) asylees and asylum applicants; (3) parole applicants; (4) parolees; and (5) applicants for family-based adjustment of status. Then we will summarize Afghans’ eligibility for federal benefit programs and the consequences of their receipt.
SIV Grantees and Applicants
The public charge ground of inadmissibility does not apply to Afghan interpreters or translators who are pursuing SIV status, either from abroad or within the United States. These applicants do not need to file an affidavit of support or demonstrate the ability to support themselves. It does not matter if the Afghan was admitted as an SIV or was paroled into the United States with SI/SQ status and is continuing to pursue SIV. Those who are granted SIV status enter or adjust as lawful permanent residents (LPRs). Should they later apply for naturalization, public charge is not an eligibility consideration, nor is their lawful receipt of any federal or state benefit program.
Asylees and Asylum Applicants
Asylum applicants, like SIV applicants, are not subject to the public charge ground of inadmissibility. If they are granted asylum, they are eligible to apply for adjustment of status after one year. Asylees similarly are not subject to public charge when applying for LPR status. They do not need to submit an affidavit of support or demonstrate their ability to support themselves.
Afghans who are outside the United States may apply to enter pursuant to INA § 212(d)(5), which gives the agency the discretionary power to parole persons “temporarily … on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” Applicants for parole are not seeking “admission,” so the grounds of inadmissibility—including public charge—do not strictly apply. Therefore, parole applicants do not need to submit a Form I-864, Affidavit of Support under Section 213A of the INA. However, potential public charge can be considered as part of the discretionary power of the agency, which may ask for an older version of the affidavit of support on Form I-134. That form is used to document the personal finances of a sponsor, which may even include an organization.
The minimum income requirement for sponsors completing Form I-134 is 100 percent of the Federal Poverty Guidelines (FPG), as opposed to 125 percent of FPG for Form I-864 (100 percent for sponsors who are active-duty members of the Armed Forces and petitioning for their spouse or child). The sponsor must demonstrate income of at least that amount for a household consisting of his or her family, the applicant, and any accompanying derivatives. The sponsor does not need to be a U.S. citizen, U.S. national, or LPR, nor does the sponsor need to be related to the applicant, although the affidavit is perhaps given less weight without an underlying moral obligation. For more information on completing Form I-134 and the legal effects, see CLINIC’s answers to Frequently Asked Questions. Unanswered, however, are issues such as measuring household size, use of assets, and the preferred documentation. Since the I-134 is not legally enforceable as a contract against the sponsor, there is also no clear date as to when the sponsorship obligations terminate.
Afghans paroled into the United States on or after Aug. 25, 2021, have been granted that status for a two-year period. After their entry, they may be eligible to pursue SIV status, apply for asylum, or seek LPR status through a family- or employment-based petition. They may also be eligible to apply for a U visa as the victim of a crime or relief under the Violence Against Women Act (VAWA) as the victim of domestic violence. Section 245(a) of the INA allows those who have been “inspected and admitted or paroled” to apply for adjustment of status if they have an approved petition, have a current priority date, and satisfy other requirements set forth in section 245(c). The public charge ground of inadmissibility would be applied to those seeking LPR status based on a family relationship or employment skill. It would not be applied to those seeking a U visa or adjustment of status as a U visa holder, nor would it be applied to those seeking protection under VAWA.
The USCIS is applying Interim Field Guidance published in the Federal Register in 1999 to define public charge. According to the guidance, a non-citizen has become a public charge for inadmissibility purposes if 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 term “public cash assistance for income maintenance” includes only three forms of benefits: (1) Supplemental Security Income (SSI); (2) Temporary Assistance for Needy Families (TANF); and (3) state and local cash assistance programs, usually known as general relief or general assistance. It also includes coverage for institutionalization for long-term care (e.g., in a nursing home or mental health institution) paid for by Medicaid or other government program.
The government will not consider any receipt by the applicant of food stamps (Supplemental Nutrition Assistance Program, or SNAP), Medicaid (other than for long-term care), the Children’s Health Insurance Program (CHIP), federal housing programs, or any other non-cash federal benefit program. The Trump administration attempted to add five federal benefit programs to the “totality of the circumstances” public charge test, but the administration’s 2019 public charge regulations were vacated and later withdrawn. The government will not consider any public benefit received by family members who are not applying for adjustment of status, unless the applicants for adjustment are relying on the family member’s cash assistance as their sole source of income.
What makes the public charge analysis more complicated is that Afghans who are paroled into the country during the relevant period are eligible for a wider range of federal benefits than other parolees. See below for a list of the most significant programs. Afghan parolees applying for a family-based immigrant visa or adjustment of status will be required to submit an I-864 and demonstrate that they are not likely to become a public charge. Assuming the 1999 Interim Field Guidance is still being applied at the time of the interview, their receipt of SSI, TANF, state cash assistance, or government funded long-term care will be considered a negative factor. For that reason, practitioners should counsel their clients on the potential consequences of receiving any of these three types of cash assistance programs.
But just because the receipt of these benefits will be considered does not mean the applicant will be found likely to become a public charge. Their receipt is not dispositive and will be weighed against other factors in the forward-looking test, including the strength of the sponsor’s I-864. Other factors might include how long the applicant received the benefits before getting settled and obtaining a job or job offer, as well as the applicant’s age, health, job skills, education and financial status. At the same time, Afghan parolees should be encouraged to apply for the full range of other programs, including Medicaid, SNAP, CHIP, and federal housing.
Eligibility for Federal Benefits
Special federal benefit eligibility is extended to Afghan SIV holders, those granted special immigrant parole (SI/SQ), and those paroled into the United States for humanitarian reasons between July 31, 2021 and Sept. 30, 2022. The technical term for these parolees is “Afghan evacuees,” which means their evacuation from Afghanistan to the United States, or to a location overseas controlled by the United States, was facilitated by the United States as part of Operation Allies Refuge. That is the basis of the “OAR” stamp on their I-94, Arrival/Departure Record. Eligibility for benefits is also extended to their spouses and children if paroled into the United States after Sept. 30, 2022, as well as to the parents or legal guardians of Afghan parolees classified as unaccompanied minors.
These Afghan parolees are eligible for the same range of federal benefits as refugees, who are classified as “qualified” non-citizens and if otherwise eligible can receive the following, in addition to other programs:
• Full-Scope Medicaid
• Head Start, and
• Women, Infants, and Children (WIC).
Afghan parolees who do not qualify for Medicaid or CHIP due to income or other categorical factors can still apply for health coverage through the Health Insurance Marketplace. Or they may be eligible for up to eight months of Refugee Medical Assistance (RMA). RMA is provided through the Administration for Children and Families and administered usually by state Medicaid programs. They are also eligible for the following benefits:
• Refugee Cash Assistance
• Refugee Support Services
• Matching Grant Program
• Preferred Communities Program, and
• Afghan Placement and Assistance (APA) Program.
Benefits eligibility for the Humanitarian (non-SI/SQ) parolees will continue until either March 31, 2023, or until the term of parole ends, whichever is later.
Afghans paroled with SI/SQ status or granted/admitted as SIVs are eligible for these same programs (with the exception of APA), in addition to the Reception and Placement Program. Just like refugees, Afghan SIVs and parolees are exempt from any five-year bar to federal means-tested public benefits that would otherwise apply to LPRs. There is no time limit on their eligibility for most programs, but they may receive SSI for only a seven-year period after being paroled.
Sponsors who execute a Form I-864—as opposed to a Form I-134—agree to maintain the sponsored immigrant at 125 percent of FPG, as well as reimburse any agency or entity that provides a federal or state means-tested public benefit program to the immigrant. The specific federal benefits for which sponsors may be liable for reimbursement are limited to TANF, SSI, SNAP, nonemergency Medicaid, and CHIP. The statutory language would seem to permit state welfare administrators to enforce these reimbursement obligations against the sponsors after the intending immigrant has become an LPR. Similarly, Afghan parolees who are encouraged to obtain these federal benefits while here in that status may find their eligibility curtailed after they immigrate. This is because for those who immigrate with a signed I-864 affidavit, the income of their sponsors may be “deemed” to them and could affect their continued financial eligibility. There are some important exceptions to the sponsor deeming rules.