Inadmissibility refers to those individuals not permitted to enter the United States. Applicants for adjustment of status to permanent resident (Form I-485, or “green card”) are regarded as applicants for admission, even though they are physically in the United States. Concerns over immigration-related consequences are raised when a non-citizen applies for certain pubic benefit programs, even though otherwise eligible to do so. Public charge inadmissibility applies to non-citizens who receive only certain public benefits. Non-citizens may receive certain public benefits without being a “public charge”. Some non-citizens and their families are eligible for public benefits, including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs, without being found to be a public charge.(Public charge inadmissibility is addressed in the Affidavit of Support, Form I-864.) In my practice as a North Carolina immigration lawyer (with clients throughout the U.S. and the world) I frequently counsel clients about the public benefits that do not trigger ”public charge” inadmissibility. Many public assistance programs do have immigration-related consequences on eligibility. Definition of Public Charge The Department of Homeland Security (DHS) United States Citizenship and Immigration services (USCIS) Adjudicator’s Manual defines ‘public charge’ as “an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” The Department of State applies a similar definition of public charge inadmissibility. Because the inadmissibility is based on whether the non-citizen is “likely” to become a public charge, a number of factors must be considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support if required, determines whether an individual is a public charge. Benefits Subject to Public Charge Consideration A non-citizen’s receipt of the following cash assistance for income maintenance programs may establish the public charge inadmissibility: Supplemental Security Income (SSI); Cash assistance from the Temporary Assistance for Needy Families (TANF); State or local cash assistance programs for income maintenance, often called “General Assistance” programs; and, Medicaid used to support aliens residing in an institution for long-term care (and not short-term care), for example a nursing home or mental health institution, may be determined to be general assistance. If a non-citizen accepts these forms of public cash assistance it could make the non-citizen inadmissible as a public charge, if all other criteria are met. Receipt of these public benefits will certainly raise issues in an application to adjust status to permanent resident (“green card”). However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds. The determination is required to be made on a case-by-case basis in the context of the totality of the circumstances. Benefits Not Subject to Public Charge Consideration Non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration; these include: Such benefits include: Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care, and emergency medical services) other than support for long-term institutional care Children’s Health Insurance Program (CHIP); Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs Housing benefits; Child care services; Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP); Emergency disaster relief; Foster care and adoption assistance; Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education; Job training programs; In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter); Non-cash benefits under TANF such as subsidized child care or transit subsidies; Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, among other forms of earned benefits, do not support a public charge determination; Unemployment compensation is also not considered for public charge purposes. The key distinction between programs and create public charge inadmissibility and those that do not is the purpose of the benefit. Public benefits that are not for income maintenance but rather to avoid the need for on-going cash assistance for income maintenance, do not give rise to the public charge inadmissibility. The fact that a non-citizen may have experienced a temporary need does not necessarily indicate that s/he is likely to become primarily dependent upon the U.S. government for subsistence. Each application is reviewed on a case-by-case basis, using a totality of circumstances analysis. Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law. He represents clients in North Carolina, and throughout the United States and the world because immigration law is a federal law practice not limited attorneys in a particular state. Goulder has been a licensed attorney and counselor at law for 30 years and guarantees personal service to every client. Clients receive one-on-one direct access to immigration attorney Gerald Goulder on phone calls, emails, or letters. If you are seeking guidance, experience and knowledge of immigration and visa laws involving family-based or employment-based permanent residence and green cards, visas, or citizenship, do not hesitate to contact Goulder Immigration Law Firm through the website or by phone toll free at 1-866-US VISAS. Continue reading “What is a “Public Charge” for Purposes of Immigration Law and Green Cards?”
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What is a "Public Charge" for Purposes of Immigration Law and Green Cards?