A leaked executive order mandating changes to the definition of public charge is now circulating and gaining attention. The order requires the Department of Homeland Security and the Department of State to establish new standards and regulations for determining when non-citizens will become subject to the public charge grounds of inadmissibility and deportability.
If the order were implemented it would direct DHS to rescind any current field guidance and replace it with guidance that reflects the order’s purpose “to protect American taxpayers [from immigrants who use federal means-tested programs] and promote immigrant self-sufficiency.” It also would require publication of a new rule that “specifies that an alien is inadmissible as a public charge if he is likely to receive, and is deportable as a public charge if he does receive, public benefits for which eligibility or amount is determined in any way on the basis of income, resources or financial need.”
It would also require a re-definition and expansion of the list of programs that qualify as a “means-tested public benefit.” Currently, only five programs are on that list: Supplemental Security Income (SSI) for the aged, blind and disabled; food stamps, Medicaid; Temporary Assistance to Needy Families, known as TANF, and the Child Health Insurance Program. Sponsors who sign an I-864, Affidavit of Support, are required to reimburse any federal, state or local entity that provides a means-tested public benefit to the sponsored immigrant for as long as the affidavit is in force. The expanded list would include all federal programs for which eligibility for benefits, or the amount of benefits, are determined in any way based on income, resources or financial need.
While the leaked document is certainly cause for concern, it does require execution and implementation and, in many cases, the formal publication of notices or proposed regulations in the Federal Register. Advocates are poised to resist against any administrative changes that are illegal or require legislative action. Nevertheless, some practitioners have been advising their clients to avoid receiving prenatal care, WIC, or other health- or food-related benefits either they or their U.S. children are entitled to receive. It is important that practitioners give proper advice and do not overreact. For that reason, here is a summary of the current law regarding public charge.
What Is Public Charge?
Public charge can form the basis for denying admission to both intending immigrants and nonimmigrants. It may be used by DOS officials in their adjudicating immigrant and nonimmigrant visa applications and by U.S. Citizenship and Immigration Services 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 welfare fraud could be denied as failing to meet the good moral character requirement.
The public charge ground of inadmissibility dates back to the first general immigration law. In 1882 Congress excluded those who were “idiots, lunatics, convicts, and persons likely to become a public charge.” In 1891, Congress specifically added the term “paupers” to the list of people subject to exclusion. A few years later, the Immigration and Naturalization Service 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 more than a century to exclude people who, in their opinion, were unable or unwilling to support themselves and other nuclear family members.
During that hundred-year period, the public charge ground of inadmissibility was used more than any other ground to deny entry or adjustment of status to intending immigrants. But by 2016, this ground of inadmissibility was one of the least common bases for denying immigrant visa applicants. While it is still a frequent basis for initial refusal, it has almost always been overcome through submission of additional documentation or a joint sponsor’s affidavit of support.
The term “likely to become a public charge” has never been defined in the statute or regulations. As a result, State Department and immigration officers exercised broad powers in interpreting this provision. Unfortunately, they sometimes applied different standards and inconsistent requirements. For at least the two decades preceding the 1996 immigration law, most officers required intending immigrants 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 -ncome applicants to submit an affidavit of support, Form I-134. This was typically executed by the U.S. citizen, Lawful Permanent Resident 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.
In the mid-1990s, 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 who lived 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.” 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.
According to the memorandum, field guidance, and proposed rule, an alien has become a public charge for inadmissibility or deportability 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 service defined the term “public cash assistance for income maintenance” as including only three forms of benefits: (1) SSI; (2) TANF; 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 explained 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, Social Security retirement or 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 State Department or INS/USCIS officer. For example, receipt of cash benefits by the alien’s parents or U.S. citizen 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 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.” Any officer who intends to deny an application based on public charge must weigh five 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
USCIS and the 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. USCIS states that “in determining whether an alien meets the definition for public charge inadmissibility … no single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.”
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:
- Family status
- Assets, resources, and financial status
- 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 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.” Matter of Martinez-Lopez, 10 I&N 409, 421-422 (AG, Jan. 6, 1964). In contrast, however, an elderly person who has been receiving SSI may have difficulty satisfying the test. Matter of Vindman, 16 I&N Dec. 131 (Reg. Comm’r 1977); Matter of Harutunian, 14 I&N Dec. 583 (Reg. Comm’r 1974).
The last reported case discussing public charge, decided almost 30 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. Matter of A-, 19 I&N Dec. 867, 870 (Comm’r 1988).
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, the previous year’s income tax return, and possibly other supporting documentation. Most officers do not consider the five factors listed 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 DOS 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.” 9 FAM 4041 N4. 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, 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. However, even physical disabilities and handicaps or mental disorders do not seem to provide a basis for closer scrutiny by USCIS and State Department adjudicating officers.
One can now assume that if the intending immigrant provides a convincing affidavit of support from a sponsor of adequate means, who will 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, have made 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.
This is reflected in the Foreign Affairs Manual, which 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.”
Not Subject to Public Charge
Certain categories of non-citizens 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
- Aliens adjusting as self-petitioners under the Violence Against Women Act
- Applicants for U nonimmigrant status
- Applicants for T nonimmigrant status
- 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. 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, which is covered in the next section.
Public Charge Ground of Deportation
Although public charge also remains a ground of deportation, given the numerous factors that must be established by Immigration and Customs Enforcement, 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 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.