The Trump administration recently indicated that it intends to establish new rules of interpretation for the public charge provision of the Immigration and Nationality Act (INA). These updates will specifically provide a new regulatory framework guiding officials in determining who is inadmissible to the United States based on public charge. It is uncertain at this point when the Trump administration will release the new rules. This post provides an overview of the current process in place for determining inadmissibility based on public charge.
What is a Public Charge?
Currently, the (INA), deems an alien inadmissible to the United States if he or she “is likely to become a public charge.” A public charge is generally defined as a person likely to become dependent on the government for subsistence in the form of public cash assistance, institutionalization for long term care at the government’s expense, supplemental security income, state or local cash assistance programs, etc. Public charge contains two provisions: inadmissibility and deportability.
Who Does Inadmissibility Apply to?
Inadmissibility applies to aliens applying for immigrant visas (whether they reside abroad or within the United States), aliens applying for admission at a port of entry, and aliens applying for adjustment to lawful permanent resident (LPR) status. It can also apply to aliens applying for nonimmigrant visas such as work, student, or tourism, but this is rare. Inadmissibility based on public charge means that any persons that fall within these groups may be denied entry into the United States or denied adjustment of status because officials have reason to believe they will become a public charge.
Who is exempt from inadmissibility due to public charge?
Certain classes of individuals are exempt from public charge determinations of inadmissibility. Refugee and asylum applicants seeking entry to the United States and refugees and asylees seeking adjustment to LPR status are among those exempt from this provision. The list of those exempt from inadmissibility due to public charge includes:
- Refugee and asylum applicants
- Refugees and asylees seeking adjustment to LPR status
- Amerasians aliens seeking admission pursuant to the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988
- Cuban and Haitian entrants seeking admission or adjustment of status as described in the Immigration Reform and Control Act of 1986
- Nicaraguans and other Central Americans adjusting status as described in the Nicaraguan Adjustment and Central American Relief Act of 1997
- Victims of certain crimes assisting law enforcement (U-visa applicants)
- Victims of human trafficking assisting law enforcement (T-visa applicants)
- Victims of abuse, abandonment, or neglect by a parent (special immigrant juveniles applying for adjustment of status)
- Syrian asylees adjusting status pursuant to P.L. 106-378
- Certain “aged, blind, or disabled” applicants adjusting status under Section 245A of the INA; 44 and other exempt classes.
Who makes the determination on inadmissibility?
For aliens residing in the US applying for lawful permanent resident status, a USCIS immigration official generally determines public charge. For aliens residing abroad applying for lawful permanent resident status in the US, a DOS consular officer will determine inadmissibility for public charge.
What factors are considered when determining inadmissibility?
The minimum factors considered to determine inadmissibility based on public charge are age, health, family status, assets, resources, financial status, education, and skills. If the Department of State (DOS) is making the determination, family members receiving public benefits will also be considered a heavily negative factor. Affidavits of support demonstrating that the applicant may rely on a sponsor for financial support may also be considered. These affidavits are required in certain family based or employment immigration, but can provide persuasive in other situations as well.
Which Public Benefits are considered in public charge determinations of inadmissibility?
|Type of Benefit||DHS||DOS|
|Public Cash Benefits|
|Supplemental Security Income (SSI)||yes||yes|
|Temporary Assistance to Needy Families (TANF)||yes||yes|
|State or local cash benefit programs for income maintenance||yes||yes|
|Public Non-cash Benefits|
|Programs (including Medicaid) supporting institutionalization for long-term at the government’s expense (e.g., a nursing home or mental health institution)||yes||yes|
|Medicaid (other than long-term institutional care)||no||yes|
|Children’s Health Insurance Program (CHIP)||no||yes|
|Supplemental Nutrition Assistance Program (SNAP)||no||yes|
|Special Supplemental Nutrition Assistance Program for Women, Infants, and Children (WIC)||no||yes|
|Supplementary and emergency food assistance programs||no||yes|
|National School Lunch and School Breakfast Program||no||yes|
|Child care services||no||yes|
|Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)||no||yes|
|Emergency disaster relief||no||yes|
|Foster care and adoption assistance||no||yes|
|Education assistance, Head Start Act, or aid for elementary, secondary, or higher education||no||yes|
|Job training and job-training programs||no||yes|
|In-kind emergency community services, such as soup kitchens and crisis counseling||no||yes|
Deportability applies to any alien already in the United States applying for LPR status. This provision states that individuals who fall within this category and have become a public charge can be deported. Currently, a three part test is used to determine deportability. (1) a state or other governing body must impose a charge for services rendered to the alien, (2) authorities must make a demand for payment of the charge within 5 years of the alien’s entry into the United States, and (3) the alien must fail to pay. In practice, officials rarely commence deportation proceedings based on public charge grounds.
What can I do if public charge applies to me?
If public charge is determined and the alien is facing removal proceedings, he or she may renew the application before an immigration judge and have the public charge determination revisited. Without any pending removal proceedings, there is no direct form of appeal or review. Individuals denied visas based on inadmissibility may present evidence that inadmissibility no longer applies, however there is no formal process.