What is Public Charge
Under section 212(a)(4)(A) of the Immigration and Nationality Act (INA), an alien who is considered “likely to become a public charge” is inadmissible to the United States. A public charge determination may be made at the time of an application for a visa or at the time of adjustment of status. A finding that an alien is likely to become a public charge will lead to the denial of his or her visa application. Furthermore, INA 237(a)(5) renders deportable an alien who becomes a public charge within five years of his or her date of entry.
In general, a determination that an alien is a “public charge” means that the alien would be likely to require means-tested public benefits in order to sustain him or herself as an immigrant.
Public charge most often arises in cases where a person is seeking permanent residency on the basis of a family-sponsored petition or on the basis of an employment-based petition where a family member has a strong interest in the employer. In such cases, the petitioner will be required to sign an “affidavit of support” of the alien and satisfy certain requirements in order for the petition to be approvable.
The Foreign Affairs Manual (FAM) explains that the public charge ground of inadmissibility is applied to those who are likely to become dependent on the government for sustenance. “Government” in the public charge context applies broadly to both federal and state benefits. However, it is important to note that not every government benefit implicates public charge.
On April 29, 2011, the United States Citizenship and Immigration Services (USCIS) released a public charge fact sheet (“Public Charge Fact Sheet,” uscis.com, (Apr. 29, 2011)). The Fact Sheet explains that benefits that provide case assistance for income maintenance implicate public charge. Such benefits include, but are not limited to: Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program, and state or local cash assistance program for income maintenance. Furthermore, public assistance to support aliens who reside in an institution for long-term care, including Medicaid, may be considered as an adverse factor in a public charge determination. The USCIS notes that receiving such benefits does not, in and of itself, render one inadmissible or deportable on public charge grounds. Rather, each determination will be made on a case-by-case basis in light of all of the available evidence.
Additionally, the USCIS listed common public benefits that are not considered in making a public charge inadmissibility/deportability determination: Medicaid and other health insurance and health services assistance (other than support for long-term care); Children’s Health Insurance Program (CHIP); Nutrition programs; Housing benefits; Child care services; Energy assistance; Emergency disaster relief; Foster care and adoption assistance; Educational assistance; Job training programs; Non-cash benefits under TANF; Community-based programs or services; Cash payments that have been earned; and Unemployment compensation.
Factors to Consider
Under INA 212(a)(4)(B), the Attorney General must consider, at a minimum, an alien’sage, health; family status, assets, resources, and financial status, and education and skills in determining whether he or she is likely to become a public charge.
The statute also permits the consideration of an “affidavit of support” submitted by the alien’s sponsor for immigrant status. To learn about the affidavit of support, please see the next section.
Under 22 C.F.R. 40.41(e), a visa applicant may submit proof of prearranged employment if he or she is relying on such employment to rebut the presumption of public charge.
Affidavit of Support
An affidavit of support is not only evidence against the presumption of public charge, but it is also required in many immigrant visa applications. Nearly all family-sponsored immigrant visa applicants will require an affidavit of support submitted by the sponsor, and in certain cases someone assuming joint and several liability with the sponsor, to be submitted on his or her behalf. Depending on the specific case, the affidavit of support commits the sponsor to supporting the immigrant visa applicant at either 125% or 100% of the Federal Poverty Line for a given period of time. The affidavit of support is required for all family-sponsored immigrant visa applicants except for the following, listed in INA 212(a)(4)(C)(i): the applicant obtained status as the spouse or child of a U.S. citizen under INA 204(a)(1)(ii), (iii), or (iv); the applicant is classified under INA 204(a)(1)(B)(ii) or (iii); or the applicant is classified or has status as a Violence Against Women Act (VAWA) self-petitioner. Although an affidavit of support is almost never required in employment-based cases, it is required where a family member of the immigrant visa applicant has a significant ownership stake in the petitioner.
Regarding the affidavit of support, it is important for petitioners and beneficiaries to consult with an experienced immigration attorney in order to understand whether the requirements for filing an affidavit of support are met. Furthermore, those seeking to sponsor a family member should become familiar with the duties and obligations entailed in the signing of an affidavit of support.
Other Cases Exempt from Public Charge Consideration
The USCIS website lists various cases in which the public charge ground of inadmissibility is inapplicable (see “Public Charge,” uscis.com, (Sep. 3, 2009)). The list refers generally to INA 212(a)(5):
- Asylum applicants
- Refugees and asylees applying for adjustment of status
- Amerasian immigrants applying for initial admission
- Individuals granted relief under the Cuban Adjustment Act
- Individuals granted relief under NACARA
- Individuals granted relief under the Hattian Refugee Immigrant Fairness Act
- Applicants for T visas
- T visa-holders applying for adjustment of status
- Applicants for U visas
- U visa-holders applying for adjustment of status
- Applicants for temporary protected status (TPS)
- Certain applicants under LIFE Act provisions
The public charge ground of inadmissibility and deportability exists to ensure that the United States does not admit aliens who will need to rely upon public benefits for their maintenance. In general, it is primarily an issue for family-sponsored immigrant visa applicants, although the public charge ground of inadmissibility and deportability sweeps more broadly. When applying for a visa, it is wise to consult with an experienced immigration attorney for a full case evaluation, including an assessment of whether public charge concerns may arise. In family-sponsored cases and limited employment-based cases, an attorney will be able to assist the sponsor in executing an affidavit of support so as to make the visa application approvable.
For persons already in the United States, it is important to remember that, with the exception of limited cases, a public charge determination can lead to removal. It is well-advised for aliens to consult with an experienced immigration attorney before accepting certain public benefits for a thorough analysis of how accepting such benefits may affect immigration status.