February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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Public Charge Ground of Inadmissibility

The old-fashioned term “public charge” causes consternation among individuals seeking to understand what behaviors may cause a green card holder or visitor to lose or be refused U.S. immigration status.

Under INA Section 212(a)(4), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” U.S. immigration law defines “public charge” as a person who, by way of poverty, insanity, disease, or disability, would become a charge upon the public. In short, a public charge is an individual who is dependent on the government for subsistence. However, foreign nationals should be aware that receiving public benefits does not automatically constitute public charge inadmissibility.

Significantly, public charge inadmissibility is only considered in the context of applying for admission to the United States or adjustment of status (“AOS”). It is not a factor considered during the naturalization process. In other words, eligibility for naturalization is not affected by an individual’s status as a public charge. Additionally, public charge is not applicable during adjudication of Form I-829, Petition by Entrepreneur to Remove Conditions.

Determination of an Individual as a Public Charge

In determining whether a foreign national meets the definition of public charge inadmissibility, a number of factors must be considered, including age, health, family status, assets, resources, financial status, education, and skills. Congress uses the “totality of the circumstances” to determine if an individual is or will be a public charge. Other than not filing Form I-864, Affidavit of Support, when required, no single factor will determine whether an individual is a public charge. For most cases, a properly filed, non-fraudulent I-864 will sufficiently overcome the possibility of public charge inadmissibility. Note that the U.S. Department of State may find the foreign national likely to be a public charge, regardless of an I-864 on file, if the applicant has identifiable personal characteristics such as extreme age, chronic illness, or physical and/or mental handicaps. In each case, it is important to notice which benefits are subject to public charge inadmissibility and which benefits are not.

Benefits Subject to Public Charge

To determine inadmissibility, immigration law specifies a public charge as a foreign national that accepts cash assistance for income maintenance at the federal, state or local level. Cash assistance programs include Supplemental Security Income and Temporary Assistance for Needy Families. However, receipt of such benefits does not automatically make a foreign national inadmissible, ineligible to adjust status, or deportable, as each determination is made on a case-by-case basis. Additionally, Medicaid used to support foreign nationals residing in long-term care, such as in nursing homes or mental health institutions, may also be considered in a public charge evaluation. Short-term care for rehabilitation is not subject to the public charge consideration.

Benefits Not Subject to Public Charge

Under agency guidelines, non-cash benefits and special-purpose cash benefits not intended for income maintenance are not subject to public charge consideration. Medicaid and other health insurance and health services for short-term care, emergency disaster relief, Children’s Health Insurance Program (CHIP), and nutrition programs (e.g., food stamps, WIC, and/or school lunch programs) are included in this category. An extensive list of benefits not subject to public charge can be found at http://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet.

Some cash benefits, such as energy assistance, transportation, and child care benefits, are not subject to public charge because the purpose of such benefits is to avoid the need for on-going cash assistance for income maintenance. Note that some of the cash assistance programs are listed as both subject and not subject to public charge.

Health Insurance

Receipt of publicly funded or supported health insurance by a foreign national holding permanent resident status is not considered for public charge purposes and is not a ground of inadmissibility. The Affordable Care Act (“ACA” or “Obamacare”) health insurance law makes health insurance coverage mandatory for most Americans, including new immigrants. The provisions of the ACA have income tax implications and may depend on the law of the state of residence. U.S. Citizenship and Immigration Services (“USCIS”) states that enrollment in the state-sponsored ACA programs, including Medicaid or state Medicaid programs such as Medi-Cal, does not raise public charge issues for new immigrants. See https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge.

The U.S. government website for the ACA, www.healthcare.gov, also has information for new immigrants, including documents needed to apply for health insurance, health insurance options for families, and how immigration status affects foreign nationals’ eligibility for insurance.

© Copyright 2013 - 2023 Miller Mayer LLP. All Rights Reserved.National Law Review, Volume VII, Number 187

About this Author

Sandra Bruno, Miller Mayer Law Firm, Immigration Law Attorney

Sandra Bruno is an Associate in Miller Mayer’s Immigration practice group.

Ms. Bruno practices immigration law, with a focus on employment-based immigration exclusively. She assists employers in obtaining non-immigrant and immigrant status for their employees. She has extensive experience working with post-doctoral researchers, professors, engineers, scientists, scholars, and individuals of extraordinary ability. Ms. Bruno also represents individuals on a variety of family-based immigration and naturalization matters. Prior to joining Miller...

Hilary T. Fraser, Miller Mayer, work authorizations attorney, immigration benefits Lawyer

Hilary T. Fraser has practiced immigration law at Miller Mayer since 1991.

Ms. Fraser represents EB-5 families, physicians, engineers, teachers, and other highly trained professionals, as well as hospitals, colleges, IT companies, and religious organizations, in pursuit of work authorizations and other immigration benefits. Ms. Fraser has presented at national conferences on immigration office staffing and U.S. immigration agency practice. Prior to law school, Ms. Fraser lived in China and New York City, where she worked as a teacher and writer...