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Administration clarifies public charge policy for immigrants who use health
care and other safety-net programs
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 the following:
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."
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
• Using Medicaid, the state Children’s Health Insurance Program (CHIP), or other health services will not affect immigration status, unless Medicaid is used for long-term institutional care.
• Using food stamps, WIC, public housing, or other programs that do not provide cash income will not affect immigration status.
• Use of cash income benefits by family members of an immigrant will not affect immigration status unless the benefits provide sole support for the family.
• Using cash income benefits like Supplemental Security Income (SSI), TANF, or general assistance might affect immigration status, depending on the immigrant’s situation.
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.
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.
Nutrition, housing, and other nonincome 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.
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.
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.
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.
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.
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:
1. the immigrant received cash income maintenance or long-term institutionalized care, and
2. the need that gave rise to the cash income benefit or the institutionalization existed at the time the immigrant entered the U.S., and
3. the immigrant received the cash income or long-term care less than five years after entering the U.S., and
4. 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
5. 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
6. 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 intending immigrants. 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.
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