# ORR State Letter

**\#** 05-02 **Date:** January 27, 2005

TO: STATE REFUGEE COORDINATORS

NATIONAL VOLUNTARY AGENCIES

OTHER INTERESTED PARTIES

FROM: Nguyen Van Hanh, Ph.D.

Director

Office of Refugee Resettlement

SUBJECT: Public Charge and ORR Populations

**[Purpose of this letter:]{.underline}**

This State Letter provides basic information about "public charge"
issues, which are aspects of immigration law under the jurisdiction of
the Department of Homeland Security (DHS). ORR is releasing this State
Letter in an effort to alleviate some of the concerns and lessen the
confusion surrounding the issue of "public charge" and its effect on ORR
populations. The former Immigration and Naturalization Service (INS),
and now DHS, have attempted to inform individuals and benefit-granting
agencies of the current "public charge" policy. Unfortunately, many
individuals and families served by ORR have elected not to seek benefits
and services they are entitled to receive, even though it is highly
unlikely that receipt of those public benefits will have negative
immigration consequences for them.

**ORR populations are generally not subject to "public charge\"
determinations for purposes of admissibility and adjustment of status to
permanent residency and generally should be encouraged to use available
public benefits, including cash assistance, health care, food stamps and
other non-cash programs.**

(Please see below for specific information about each of the groups that
ORR serves.)

**["Public Charge" Defined:]{.underline}**

Published DHS guidance states that "public charge" means "an alien who
has become (for deportation purposes) or is likely to become (for
admission or adjustment of status \[to permanent resident\] purposes
'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.'" This
definition alone, however, is not the only basis for determining whether
an individual is a public charge. Many other issues and factors must be
taken into consideration prior to making a determination as to whether
or not an individual is inadmissible, cannot adjust status to permanent
residency or is deportable under immigration law. (1) Additionally,
there are many public benefits that will not be considered in a "public
charge" determination such as Food Stamps, Medicaid, WIC, prenatal care,
immunizations, nutrition programs, housing assistance and numerous other
non-cash benefits.

A full description of these factors, the public benefits that can and
cannot be considered, and how the public charge immigration provisions
apply to non-exempt persons can be found in public charge Fact Sheets,
Quick Guides (for non-citizens), and Questions and Answers published on
the website of the U.S. Citizenship and Immigration Services (USCIS), a
DHS component, at
[http://uscis.gov/graphics/publicaffairs](http://uscis.gov/graphics/publicaffairs/presinfo4.htm#PublicCharge)~/~presinfo4.htm#PublicCharge.
These materials are also available in many major immigrant languages.
The two-page Quick Guides on the website were designed specifically as
hand-outs for non-citizens who may have concerns about whether accepting
particular benefits will subject them to public charge immigration
consequences.

> **[Refugees and Asylees]{.underline}**
>
> **Refugees and asylees are not subject to "public charge"
> determinations for purposes of admission and adjustment of status.**
> (2)
>
> **[Cuban and Haitian Entrants]{.underline}**
>
> The Cuban Adjustment Act (CAA), (3) the Nicaraguan Adjustment and
> Central American Relief Act (NACARA) (4) and the Haitian Refugee
> Immigration Fairness Act (HRIFA) (5) contain exceptions to the public
> charge ground of inadmissibility for individuals eligible for
> adjustment of status under their provisions. However, Cuban and
> Haitian entrants that seek adjustment under other provisions of the
> law that do not contain "public charge" exceptions are subject to the
> usual "public charge" rules. For example, an individual who meets the
> definition of a Cuban and Haitian entrant, but adjusts status based on
> a family relationship, would be subject to the usual "public charge"
> rules.
>
> **[Amerasians]{.underline}**
>
> Certain Amerasians who are admitted to the U.S. as immigrants (as
> lawful permanent residents) are exempt from the "public charge" ground
> of inadmissibility. (6)
>
> **[Victims of a Severe Form of Trafficking]{.underline}**
>
> Individuals who apply for T nonimmigrant status are exempt from the
> public charge ground of inadmissibility. (7) However, T status holders
> (as opposed to applicants) who apply for adjustment of status are not
> exempt per se from a public charge review, but may request a waiver.
> (8)

As described above, most ORR populations are not subject to "public
charge" determinations for admission and adjustment purposes. Therefore,
such individuals should be encouraged to use available public benefits,
including cash assistance, health care, food stamps, and other non-cash
programs. It should be noted, however, that in **extremely rare
circumstances**, non-citizens in any immigration status who received
public cash assistance or long-term institutionalization paid by the
government within their first five years in the U.S. for reasons (such
as illness or disability) that existed before their entry into the U.S.
could be considered deportable as a public charge. While refugees,
asylees, Cuban and Haitian entrants, Amerasians, victims of a severe
form of trafficking and lawful permanent residents (LPRs) who previously
held one of these statuses are not exempt by law from deportation on
public charge grounds, the requirements for deportation of any alien on
such grounds are so stringent that they are almost never met. Therefore,
such population groups should not be inordinately fearful of deportation
as a public charge. (9) The DHS guidance on the USCIS websites and in
the former INS field guidance published in 1999 explains the many
required deportation criteria. (1)

If you encounter a non-citizen who has concerns regarding the effect of
receiving any public benefits on his or her immigration status,
including, but not limited to potential deportation and the ability to
adjust to permanent residency, please advise the individual to obtain
competent legal advice from an authorized immigration attorney or
practitioner. (10)

**If you have questions regarding any of the information contained in
this State Letter, please contact Paul Gleason at (202) 401-4604 or by
email at pgleason@acf.hhs.gov.**

\(1\) The former INS' interim field guidance on public charge issues
remains in effect under DHS and is available at 64 Fed. Reg. 28689-93
(May 26, 1999). This cite may also be accessed through the Federal
Register's website at
<http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1999_register&docid=99-13202-filed.pdf>.
The INS' proposed rule on public charge was also published in the
[Federal Register]{.underline} on May 26, 1999. See also, the U.S.
Citizenship and Immigration Services (USCIS) "*Fact Sheet" on Public
Charge*,
(<http://uscis.gov/graphics/publicaffairs/factsheets/public_cfs.pdf>);
and USCIS "*Questions & Answers on Public Charge*"
([http://uscis.gov/graphics/publicaffairs/questsans/public_cqa.pdf](http://uscis.gov/graphics/publicaffairs/questionsans/public_cqa.pdf)).
Also see the U.S. Department of State Foreign Affairs Manual, 9 FAM
40.41
([www.foia.state.gov/masterdocs/09fam/0940041N.pdf](http://www.foia.state.gov/masterdocs/09fam/0940041N.pdf))

\(2\) INA § 209(c) (8 USC § 1159(c)). Refugees and asylees do not need
to file an affidavit of support with their adjustment of status
application. INA § 212(a)(4)(C) and (D) (8 USC § 1182(a)(4)(C) and (D))
require certain individuals applying for adjustment of status based on a
family relationship and certain individuals applying based on employment
to submit with their adjustment application, an affidavit of support
from a qualifying sponsor. An affidavit of support is a legally binding
promise that the sponsor will provide support and assistance to the
immigrant if necessary (INA § 213A) (8 USC §1183a). If an adjustment
applicant fails to submit the affidavit of support, he or she is found
inadmissible as a public charge. Again, this requirement does not apply
to refugees and asylees.

\(3\) Cuban Adjustment Act (CAA), Pub. L. 89-732. See Matter of Mesa, 12
I&N Dec. 432 (INS 1967).

\(4\) Nicaraguan Adjustment and Central American Relief Act (NACARA),
Pub.L. 105-100, § 202(a), providing for adjustment of eligible nationals
of Cuba and Nicaragua.

\(5\) Haitian Refugee Immigration Fairness Act (HRIFA), Pub. L. 105-277,
Title IX, § 902(a), providing for adjustment of eligible nationals of
Haiti.

\(6\) Amerasian immigrant as defined in § 584 of the Foreign Operations,
Export Financing, and Related Programs Appropriations Act of 1988, as
amended (8 U.S.C. 1101 note).

\(7\) INA § 212(a)(13)(A) (8 USC § 1182(a)(13)(A)), as amended by the
Trafficking Victims Protection Reauthorization Act of 2003, § 4(b)(4).

\(8\) INA § 245(l)(2)(A) (8 USC § 1255(l)(2)(A).

\(9\) To deport an alien on public charge grounds under INA, 237(a)(5),
(8 USC § 1227(a)(5)) the law requires that the alien has become a public
charge within the first five years after entry from causes not
affirmatively shown to have arisen since entry. Under case law and DHS
guidance, other factors must also apply: the benefit-granting agency
must have 1) sought repayment of the benefits provided to the alien for
cash assistance or long-term institutionalization; 2) obtained a final
judgment against the alien for repayment; 3) taken all steps to collect
on that judgment; and 4) been unsuccessful in those attempts to obtain
repayment. Since one or more of these factors frequently does not apply,
the government rarely seeks to deport aliens on public charge grounds.

\(10\) Some sources for such advice include the American Immigration
Lawyers\' Association (AILA), the lists of immigrant legal assistance
organizations maintained by local area Department of Justice immigration
courts and the offices of Immigration and Customs
Enforcement (ICE/DHS) and U.S. Citizenship and Immigration Services
(USCIS/DHS) covering the area where the individual resides.