Immigration Law Associates, PC


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People wonder if getting government benefits will hurt their chances of getting a green card or becoming a United States citizen.  “Public charge” is a term used by immigration officials to refer to persons who are considered primarily dependent on the government for subsistence and is an attempt to limit government spending for poorer, non-US nationals.  The proposed rule has already been implemented by the Department of State (DOS) since January 2018, and  would increase what is considered a public benefit for public charge purposes also with Department of Homeland Security Citizenship and Naturalization Services  ( DHS-CIS)  with dire consequences for other US family members.

The Immigration and Nationality Act ( INA)  does not define the term “public charge”. The DHS definition comes from Field Guidance on Deportation and Inadmissibility Grounds ( 64 FR 28589) issued on May 26, 1999.  Currently, both the Department of State and the Department of Homeland Security ( CIS ) are affected.   The DOS implemented this rule making foreign nationals to the US inadmissible to the US, and the DHS-CIS implementation would subject those in the US to deportation. 

According to the INA, a foreign national is rendered inadmissible to come to the US if he or she is likely at any time to become a “public charge” (INA 212 (a) (4). It also subjects people to deportation who are admitted to the US and then become dependent on government benefits (INA 237 (a) (5).  Under this section, a person is deportable, who within five years after entry into the US becomes a public charge.  Previously, “primarily dependent” on the Government for subsistence was defined as demonstrated by either receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.  Public benefits that could be considered under the new proposed rule would include receiving one or more public benefits and could include food stamps  (SNAP), Section 8 Housing Vouchers, broaden any use of Medicaid unless exempt, and other programs.  Additionally, receipts of any type of public mean-tested benefit in the past could be used to determine whether a person is likely to become dependent in the future.

Last month, the US Department of Housing and Urban Development (HUD) proposed changes to “mixed status families” meaning those who live with a US or permanent resident immediate relative.   While the current law allows housing assistance to this group, benefits are pro-rated so that ineligible aliens do not receive any housing assistance.  Under the proposed rule, all applicants under age 62 would have their immigration status screened through SAVE, and heads of household would have to be verified as eligible.

Evaluation of public benefits would be based on the “Totality of the Circumstances” founded on five criteria: age, health, education and skills, family status, financial resources, and assets and status.   The DOS determines whether a person applying for a visa will be inadmissible under 9 FAM 302.8-2 (B)(2) (f)(a)(b)(i).   Since January 2018 when the rule was implemented, officers consider past or current receipts of public assistance of “any type” in their decision, including information of the US sponsor.  This has resulted in a 316% increase of denials from 3,200 to over 13,400 denials last year. 

Generally speaking, a person must be low-income and documented to have received publically funded benefits.  Certain categories are exempt: such as refugees, asylees, U-visa applicants ( victims of certain crimes), Cuban and Haitian entrants under HRIFA,  Amerasians seeking admission pursuant to certain Appropriations Act of 1988, juveniles under SIJS, and certain other exempt categories. 

DHS-USCIS does not include public benefits by family members unless it is their sole means of support.  However, DOS consular officers give broader consideration to benefits received by a family member and view it as a heavily negative factor on the totality of circumstances.  An affidavit of support acting as a contract between the Government and Petitioner/ sponsor as well as visa applicant to reimburse the government for a means-tested public benefit is required.

However, the implementation of the rule by DHS-CIS would affect family members living in the same households to deportation, such as parents or children.  Whereas, previously cash benefits were primarily considered for public charge purposes; now non-cash or special-purpose cash benefits generally not taken into account would be included.   These benefits are considered supplemental in nature and do not make a person primarily dependent on the government for subsistence.  Thus past, current or future receipt would now impact a public charge determination if the proposed rule passes.   This determination would result in denial of lawful permanent residency, being put into removal proceedings, possible removal order and deportation, and denied entry into the US.

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