IMMIGRANTS
& PUBLIC BENEFITS |
ADMINISTRATION CLARIFIES PUBLIC CHARGE POLICY FOR IMMIGRANTS WHO USE HEALTH CARE AND OTHER SAFETY NET PROGRAMS
Conference Call Thursday and More Updates
NILC will host a nationwide conference call to discuss the new public charge guidance and to answer questions on Thursday, May 27 at 3:00 p.m. E.S.T. This will be a share-the-cost conference call. You will need a VIALOG account code to join the call; if you do not have an account code, please call VIALOG at (800) 777-1826 at least one hour before the call. To participate in the call, dial (703) 925-2401; the confirmation number is 1596790 and the password is "public charge."
Watch for additional e-mail updates over the next week. Advocates are preparing materials for service providers and community education materials on the new federal public charge guidance. Organizations working with immigrant communities will want to get the word out quickly about the government's clarification. NILC will distribute the outreach materials soon and sample comments on the regulation when they become available.
Updates and sample materials will also be posted on NILC's new web site.
In a major policy action, the Clinton Administration announced today that it is issuing guidance and proposed regulations clarifying the meaning of "public charge." The announcement drew praise from immigrant and social services advocacy organizations.
By law, most noncitizens who want to get a green card, otherwise immigrate to the U.S., enter the U.S. temporarily, or re-enter after lengthy travel abroad must show that they are not likely to become a public charge. The new policy clarifies and standardizes the meaning of this requirement, which had become so confusing that immigrants have avoided seeking basic health care and other needed services because of fear that it would lead to denial of a green card or immigrant visa. Immigrants and their families should now be better able to assess the potential immigration consequences of participating in government programs and understand how their applications will be handled when they go to a State Department consulate or to the INS.
The climate of uncertainty created by the government's lack of a clear standard had become a major barrier to immigrant families' participation in programs that protect public health and welfare. For example, immigrant parents were afraid to enroll immigrant or citizen children in the new state Children's Health Insurance Program (CHIP) enacted in 1997 to protect the health of children in working families. Unfortunately, due to the lack of a clear government standard, these immigrant concerns had a basis in fact. In recent years, some immigrants were detained at the border after short trips abroad until they repaid the value of benefits used in the past, even though the benefits were lawfully received. In other cases, immigrants were prevented from getting a green card because of their lawful participation in widely available health care programs such as Medicaid.
The new standard clarifies that these practices are illegal. The guidance provides that the only government programs that can have a negative effect on immigration status are cash welfare for income maintenance and long-term institutional care at government expense. It also clarifies the circumstances under which receipt of cash welfare or institutionalization can become a factor in immigration determinations. For example, permanent residents who travel abroad for less than six months generally should not be questioned about public charge. And, public charge does not affect immigrants who want to become citizens. The new guidance and proposed regulations are summarized in detail in the pages that follow.
The Administration materials explaining the new policy include:
1. A proposed regulation (Notice of Proposed Rulemaking), "Inadmissibility and Deportability on Public Charge Grounds," issued by the Department of Justice, that was made public May 25 and is scheduled for publication in the Federal Register on May 26; to obtain a copy over the internet, go to www.gpo.ucop.edu.
2. An INS field guidance, Memorandum for all Regional Directors: "Public Charge: INA Sections 212(a)(4) and 237(a)(5)," was issued May 20 and is scheduled for publication in the May 26 Federal Register;
3. A Department of State cable to U.S. consulates, "INA 212(a)(4) Public Charge: Policy Guidance," effective Tuesday, May 25;
4. Accompanying materials, such as an INS fact sheet, answers to questions, and a press statement by Vice President Gore; to obtain these materials over the internet, go to www.ins.usdoj.gov; and
5. Field correspondence from the federal agencies administering benefits, the Department of Health and Human Services, Department of Agriculture, and Social Security Administration to state directors of Medicaid, Temporary Assistance for Needy Families (TANF), Food Stamps, and the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), and other agencies; distribution of these letters began today.
The proposed regulation has a 60-day comment period and will not be effective until the comments have been reviewed and interim or final regulations are promulgated. Nevertheless, the Administration is very unlikely to make significant changes in the final rule, assuming that a high percentage of the comments received are favorable.
Advocates are urged to submit comments to ensure that the final regulations do not roll back any of today's announcements. Comments should reference INS No. 1989-99 and be sent in triplicate to: Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, N.W., Room 5307, Washington, D.C. 20536.
Within the next few weeks, NILC will distribute sample comments to the proposed rule via e-mail.
Although the proposed regulation will not be effective until the final rule is adopted, the INS field guidance and the State Department cable to consuls are effective immediately. The INS question-and-answer piece promises that immigrants who rely on the current guidance "will not suffer harsher immigration consequences based on that reliance."
Highlights of the Guidance
When Is Public Charge Relevant?
Most noncitizens who seek a visa or entry to the U.S. are subject to the public charge test. But public charge is not considered in many immigration contexts.
There is no public charge test to qualify for citizenship or registry. However, these do have a "good moral character" requirement, which would not be met if the immigrant had committed fraud on a benefit application. Permanent residents who applied for benefits or a green card by misrepresenting or omitting information on their application should talk to an immigration counselor before applying for citizenship.
The law also waives the public charge requirement for certain groups of applicants, such as refugees. The statute contemplates that refugees and certain other newcomers will arrive with few resources and should be provided with assistance until they become resettled.
Public charge does not apply to:
For some other immigration applications, such as suspension of deportation and cancellation of removal (available to Salvadorans and Guatemalans under NACARA), public charge is not part of the statutory requirements, but some immigration judges do consider economic circumstances when using their discretionary power to decide whether to grant the immigrant's application. The principles of the new policy should apply to these determinations as well, as the INS recently acknowledged in deciding to eliminate the public benefits question from the NACARA suspension/cancellation application. Hopefully the final rule on public charge will confirm that these principles apply to all discretionary determinations regarding public benefits.
What follows is a summary of the guidance and the proposed regulations.
Summary of the New Policy
The new federal policy clarifies and interprets the law of public charge as found in the Immigration and Nationality Act. It defines public charge as "primarily dependent on the government for subsistence."
The guidance places special emphasis on how the government will weigh evidence of an immigrant's receipt of public benefits in determining whether or not the immigrant meets the new definition of public charge and is therefore barred from admission to the U.S. Specifically, the guidance states that only benefits that provide either cash assistance for income maintenance or long-term residential institutionalization are relevant to a public charge screening.
Under the public charge doctrine, when a person applies for permanent residency in the U.S.—either from outside the country by applying for an immigrant visa or from inside the U.S. by applying for adjustment of status—the government must deny the application of anyone who is "likely to become a public charge." In addition, the government can deny the readmission to the U.S. on public charge grounds of a permanent resident who has left the country for six months or more. In making a public charge determination, the government must look to the future, giving consideration to the immigrant's age, health, income, family size, education and skills, and the immigrant's sponsorship under an affidavit of support. This doctrine has not changed in many years, although the list of factors that must be considered in making a public charge determination was not codified until the 1996 immigration law.
There also has been no change in the law of public charge in the context of removal (deportation), where receiving assistance is relevant only under unusual circumstances. The new guidance leaves this policy intact, but incorporates the new 1996 rules requiring the immigrant's sponsor to repay certain benefits under an affidavit of support. These removal rules will be explained in detail below, along with other provisions of the guidance.
1. Health Care Is Safe
It is safe for immigrants to use Medicaid, CHIP, county health care, or any other health services except long-term institutionalization without fear of affecting immigration status. The guidance makes clear that absent long-term residential care, use of a health benefit is supplemental to subsistence and thus is irrelevant to public charge determinations. This is true whether the health services such as Medicaid and CHIP are being used by the immigrant applicant or by his or her family members, and whether the use was in the past or is current.
This means that health benefits other than institutionalization will not be considered when adjudicating applications for an immigrant visa to the U.S. or for adjustment of status to permanent residency.
2. Nutrition, Housing, and Other Non-Income Programs Are Safe
It is safe for immigrants to use food stamps, WIC, school lunch and other child nutrition programs, food pantries, emergency shelters, public housing, energy assistance, job training, child care, or any other programs that do not provide cash income maintenance, without fear of affecting immigration status. These programs are "supplemental" in nature: like health care, they supplement the income of the working poor by helping to meet food, housing, and other needs of people who are becoming self-sufficient. The guidance makes clear that supplemental programs are irrelevant to public charge determinations, whether received in the form of cash or in the form of vouchers or in-kind benefits, whether used by the immigrant or by family members, whether used in the past or presently.
As with health care benefits, other supplemental benefits will not be considered by immigration agencies when making decisions on applications for immigrant visas or for adjustment of status.
3. Cash Income Maintenance Received by Family Members Is Generally Safe
It is safe for an immigrant's child, parent, or other family member to receive cash income maintenance benefits as long as those benefits are not providing the family's sole support. Thus, for example, an immigrant's disabled parent may receive SSI, or child may receive TANF, without
adversely affecting the immigrant's application for a green card, so long as the parent's SSI or the child's TANF is not serving as the only income for the family.
4. Reliance on Cash Income Maintenance May Make One a "Public Charge"
Immigrants who are receiving "public cash assistance for income maintenance," e.g., SSI, TANF, or state or local general assistance programs at the time they are applying for an immigrant visa or permanent residency will probably have their application denied on public charge grounds, absent strong evidence that use of benefits will only be temporary.
Cash payments other than for income, such as payments for "special purposes," do not count as "public cash assistance for income maintenance." Examples of cash payments for special purposes include earmarked payments, such as Social Security and unemployment, do not count and are irrelevant to the public charge inquiry.
If the immigrant is not currently receiving cash income benefits, but relied on them in the past, the adjudicator will scrutinize the immigrant's economic circumstances closely. In such a case, the immigrant must have an affidavit of support and show evidence of income, assets, health, earning power, and/or family resources, that substantiate the immigrant's ability to avoid reliance on government cash income maintenance assistance in the future. The longer ago the cash income benefit was received, the less weight it should be given by the government.
5. Reliance on Public Funds for Long-Term Institutionalized Care Makes One a "Public Charge"
Immigrants with serious illnesses or infirmities that require permanent, long-term institutionalized care paid for by public funds will be denied immigrant visas or permanent residency status on public charge grounds. Long-term institutionalized health care is the only type of health care assistance that is relevant to a public charge inquiry.
6. Permanent Resident Travel Outside the U.S. for Less than Six Months Is Generally Safe
When immigrants leave the U.S., the law may under certain circumstances view their return as a "re-admission" which requires immigration officials to screen for grounds of inadmissibility, including public charge. It is generally safe for immigrants who already have permanent residency status (green cards) and who receive public benefits (even cash income maintenance) to travel outside the U.S. for 180 days or less without fear of public charge consequences. The only exceptions are if the immigrant abandoned residence in the U.S., engaged in some form of criminal conduct, or was in deportation proceedings when he or she left the U.S.
Under no circumstances may immigration officials ask a returning immigrant to repay benefits lawfully received. The key word is "lawfully": an immigrant under investigation for fraud may be questioned upon reentry as part of the fraud investigation.
In addition to INS and State Department rules, immigrants and citizens wishing to travel must understand rules of the agencies granting the benefits. These rules generally require the recipient to be in the U.S. in order to receive the benefit. Any person receiving benefits of any type may have to discontinue receipt of assistance during travel outside the U.S. that lasts for more than a month.
7. Removal (Deportation) on Public Charge Grounds Is Still Possible under Narrow Circumstances
An immigrant who is already a lawful permanent resident (green card holder) can be removed (deported) for receiving benefits only under unusual circumstances. The guidance makes clear that a permanent resident cannot be deported on public charge grounds unless all of the following conditions are met:
(a) the immigrant received cash income maintenance or long-term institutionalized care, AND
(b) the need that gave rise to the cash income benefit or the institutionalization existed at the time the immigrant entered the U.S., AND
(c) the immigrant received the cash income or long-term care less than five years after entering the U.S., AND
(d) the immigrant or the immigrant's sponsor has a legal debt to the government agency that provided the cash income or long-term care, AND
(e) within five years after the immigrant entered the U.S., the immigrant or the immigrant's sponsor received a notice from the government that the debt was owed (this five-year period restarts if a permanent resident re-enters the U.S. after an absence of more than 180 days), AND
(f) the immigrant or the immigrant's sponsor refused to repay the debt even after the government obtained a final judgment in a lawsuit and took all steps necessary to enforce the judgment.
It is important to note that federal programs like SSI, TANF, and long-term care paid for by Medicaid do not create a legal debt on the part of the immigrant. However, an immigrant who receives these programs may create a legal debt for his or her sponsor who has submitted a new affidavit of support (form I-864). This new affidavit of support was created by the 1996 law and went into effect December, 1997. In addition, depending on state law, some state and local cash maintenance programs, such as general assistance or general relief, may create a debt for the recipient. Even with these exceptions, it is extremely unusual to meet all the circumstances that could give rise to removal on public charge grounds.
Effect of the Guidance on the New Affidavit of Support
In addition to people who apply for permanent residency, people who plan to sponsor a relative to come to the U.S. also are afraid to use benefit programs for fear the government will reject their affidavit of support. Under the 1996 law, most intending immigrants must have a sponsor who completes the new affidavit of support (form I-864). The sponsor must be able to meet a minimum income requirement (125 percent of poverty taking income and assets into account), or a qualifying co-sponsor must submit an additional affidavit. There currently is a question on the affidavit of support form that asks whether the sponsor or any household member or dependent has received any "means-tested public benefit" within the past three years.
The question-and-answer materials accompanying the guidance clarify that despite the existence of this question, receipt of government assistance should not adversely affect an individual's ability to qualify as a sponsor since there is no public charge screening for sponsors, only for intendingimmigrants. Rather, the reason for including the benefits question on the form was to ensure that any cash income maintenance benefits are not counted toward meeting the requisite 125 percent of poverty income required of the sponsor. It is anticipated that the benefits question will be eliminated from the form when the affidavit of support regulations are finalized in the months to come.
What follows are talking points on the new public charge guidance prepared by the National Council of La Raza (NCLR). For more information, contact murrutia@nclr.org.
PUBLIC CHARGE: MAINSTREAM MEDIA TALKING POINTS
This is the first time in recent memory that the federal government has produced guidance on the areas of immigration law which intersect with other social policies.
This announcement harmonizes the policies of the various federal agencies with immigration policy for the first time; it will reduce widespread confusion among legal immigrants and their families which is undermining their access to critical services, such as health care and nutrition.
In
the past, the State Department and the INS—which both have jurisdiction over deciding
which immigrants may be denied entry to the United States because they are "likely to
become a public charge"—operated according to different standards which were not
synchronized. The implementation of public charge policy was very loosely defined,
which meant that individual officers at the INS or at the State Department could make
different determinations on cases with very similar facts. Establishing a clear
standard governing both agencies' activities has the potential to greatly reduce these
discrepancies, which in turn will reduce confusion in immigrant communities.
By
articulating clearly the way in which immigration and consular officials will make public
charge determinations, this guidance goes a long way toward eliminating confusion.
Immigrants and their family members who feared using health care, nutrition and other
programs can now be reassured that using these programs is safe. While there are
many other barriers to the delivery of health care, nutrition, and other important
services to immigrant communities, this guidance goes a long way toward preventing the
unnecessary erosion of these programs through a back door mechanism which was never
intended under the law.
The Administration's "Public Charge" announcement addresses a major concern in immigrant communities which has been undermining access to health care, nutrition, and other critical services for legal immigrants and their family members who are clearly eligible for these services.
Immigrant
advocates throughout the country continually report that immigrants and their family
members are afraid to enroll in critical assistance programs, such as food stamps,
Medicaid, and the Child Health Insurance Program (CHIP) out of fear that receiving such
assistance might have negative immigration consequences in the future. In addition,
many immigrants fear enrolling their children in similar programs, even if their children
are U.S. citizens. These fears stem from a variety of sources:
Last
year, the INS and the State Department were improperly asking immigrants to supply
information about prior use of Medicaid by anyone in their families, and requiring that
they repay any such assistance before entering the U.S. as an immigrant or after a short
trip abroad. Through intervention by immigration advocates, both INS and State
clarified to their officers that such practices were in violation of the law; however,
many immigrants fear that these practices might continue, or might occur in other
contexts.
The INS and State Department also showed signs of reinterpreting their application of public charge policy—that is, the immigration law under which a prospective immigrant must prove that s/he is not "likely to become a public charge." By asking immigrants a wide variety of new questions regarding their family members and regarding the use of programs which are not cash subsistence programs, these agencies created the widespread perception among immigrants that it was unwise to accept any form of assistance from any source.
Fear in immigrant communities resulting from these practices has severely undermined the implementation of key social service programs, particularly health care, which are provided in the public interest. For example:
In
Yakima County, Washington, a U.S. citizen child of a permanent resident father and a
mother who is waiting for her immigrant visa did not receive medical care for the six ear
infections he had in 1997. The parents were afraid that if they sought treatment for
the child, the mother would never be allowed to get an immigrant visa.*
A
Merced County, California clinic reports that two pregnant women who are legal permanent
residents left their prenatal care program because they are afraid to continue receiving
Medicaid benefits for which they are lawfully eligible.*
Both
the U.S. General Accounting Office and the Urban Institute have documented that immigrant
communities' use of health care and nutritional assistance programs is far lower than
their actual eligibility for these services, and is declining. Service providers
believe that some of the reluctance to participate in these programs stems from confusion
resulting from the "public charge problem." This guidance allows these
service providers to educate immigrant communities in a way which is likely to minimize
these fears.
* These cases—along with many others—were documented in a May, 1998 paper prepared by the National Immigration Law Center (NILC) and the National Health Law Program (NHeLP).
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