**U.S. Department of Housing and Urban Development**

HOUSING

**Special Attention of: Notice** H 99-20

> All Multifamily Hub Directors **Issued:** 7/22/99
>
> All Multifamily Program Center Directors and **Expires:** 7/31/2000
>
> Supervisors
>
> All HUD Multifamily Project Managers Cross References:
>
> Owners and Management Agents
>
> Contract Administrators

**Subject:** Guidance on definition of \"public charge\" in immigration
laws

The Department of Justice (DOJ) published in the Federal Register on May
26, 1999 (64 FR 28676) a proposed rule that establishes clear standards
governing whether an alien is inadmissible to the United States,
ineligible to adjust immigration status, or has become deportable, on
the grounds that he or she is likely to be or is a \"public charge.\"
The Immigration and Naturalization Service (INS) also published Field
Guidance in the same Federal Register (64 FR 28689), and the Department
of State (DOS) has issued a cable to all embassies, implementing
immediately the policy set forth in the proposed rule.

There has been some confusion among immigrant families, and service and
benefit providers, regarding how the receipt of different benefits and
services by immigrants and their family members will be treated for
public charge purposes. The proposed rule, along with the INS guidance,
clarifies the limited number of benefits that may be considered by
immigration officials in making public charge determinations.

With regard to the Department of Housing and Urban Development (HUD),
the effect of the proposed rule and the INS guidance is to provide that
an otherwise eligible noncitizen can receive benefits/services under
HUD\'s programs and such receipt will not be considered by immigration
officials as part of a public charge determination.

The DOJ proposes to define public charge to mean an alien who has become
(for purposes of deportation) or is likely to become (for purposes of
admissibility or adjustment) "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.\" Cash benefits for income maintenance
include the following: (1) Supplemental Security Income (SSI); (2)
Temporary Assistance for Needy Families (TANF), but not including
supplemental cash benefits excluded from the term \"assistance\" under
TANF program rules or any non-cash benefits and services provided by the
TANF program; (3) State and local cash benefit programs that are for the
purpose of income maintenance (often called \"General Assistance\" but
which may exist under other names). The sole exception to the focus on
cash assistance is an instance in which Medicaid or a related

H: Distribution: W-3-1

program would meet this definition by paying for the cost of a person\'s
institutionalization for long-term care. The proposed rule and Guidance
clarify that receipt of cash welfare assistance (SSI, TANF , or
State/local equivalents) cannot automatically result in a public charge
inadmissibility determination. The INS and DOS officers must still apply
a \"totality of the circumstances\" test which may include receipt of
cash assistance for income maintenance purposes, but also must include
several mandatory factors, including age, health, family status, assets
and resources, financial status, education, and skills.

The INS also advises the following. First, deportations on public charge
grounds are rare and are expected to remain so. Second, an alien\'s mere
receipt of public cash assistance for income maintenance will not make
him or her deportable as a public charge. Finally, the INS guidance
reiterates other long-standing legal requirements that must also be met
before a public charge deportation can occur.

HUD\'s programs are not listed above, and are not identified in the
proposed rule or the INS guidance as providing a cash benefit for income
maintenance purposes. Accordingly, receipt of benefits/services under
HUD\'s programs will not be considered by immigration officials as part
of a public charge determination.

Because this policy area is complicated, we encourage grantees, and
State and local agencies, to become familiar with the proposed rule and
Field Guidance published in the Federal Register. We are also attaching
a short summary of the new policy and a set of frequently asked
questions and answers, prepared by the INS, to help grantees, and State
and local agencies, better understand the details of these new public
charge policies and which noncitizens may be affected.

If you need further clarification, plea Helene DeVous of Business
Products on (202) 708-2866 ext. 2761.

> William C. Apgar
>
> Assistant Secretary for Housing-
>
> Federal Housing Commissioner
>
> Attachments

**[INS Fact Sheet]{.underline}**

**Public Charge**

In an effort to protect the public health and help people become
self-sufficient, the Clinton Administration is publishing a proposed
rule in the *Federal Register* on May 26 that clarifies the
circumstances under which a non-citizen can receive public benefits
without becoming a \"public charge\" for purposes of admission into the
United States, adjustment of status to legal permanent resident, and
deportation.

The new regulations, for the first time, define \"public charge\" and
state which benefits a non-citizen may receive without concern for
negative immigration consequences. The regulation describes the various
issues that must be considered in making a public charge determination.
This information will help non-citizens and their families make informed
choices about whether to apply for certain benefits. The regulation also
enhances the administration of the nation\'s immigration laws by
promoting fair and consistent decision-making.

**Background**

\"Public charge\" has been part of U.S. immigration law for more than
100 years as a ground of inadmissibility and deportation. An alien who
is likely at any time to become a public charge is inadmissible and
ineligible to become a legal permanent resident of the United States.
Also, an alien can be deported if he or she becomes a public charge
within five years of entering the United States from causes that existed
before entry. Instances of deportation on public charge grounds have
been very rare.

Recent immigration and welfare reform laws have generated considerable
public confusion and concern about whether a non-citizen who is eligible
to receive certain Federal, State, or local public benefits may face
adverse immigration consequences as a public charge for having received
public benefits.

This concern has prompted some non-citizens and their families to deny
themselves public benefits for which they are eligible \-- including
disaster relief, treatment of communicable diseases, immunizations, and
children\'s nutrition and health care programs -potentially causing
considerable harm to themselves and the general public. This impact
undermines the government\'s policies of increasing access to health
insurance and health care and helping people to become self-sufficient
by drawing temporarily on public support during a transition period.

**Definition of Public Charge**

The proposed rule, which was drafted after an extensive interagency
process with benefit-granting agencies, defines \"public charge\" to
mean **an alien who has become (for deportation purposes) or is likely
to become (for admission or adjustment of status 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, cannot be used to determine if an alien is a
public charge \-- other issues must be considered, as specified below.

The Immigration and Naturalization Service (INS) is implementing this
definition of public charge immediately through field guidance
discussing the definition and standards for public charge
determinations. The field guidance will be published along with the
proposed rule in the *Federal Register.* In addition, the United States
Department of State (DOS) will send a cable to U.S. consulates abroad
providing guidance on public charge determinations for admission
purposes. By making this guidance effective immediately, INS and DOS are
helping to relieve public concerns about receiving health care and other
important services, as well as providing field personnel with the tools
needed to enforce immigration law in a clear and consistent manner.

At the same time, INS is seeking public comment on this approach. The
proposed rule includes a 60-day public comment period.

**Benefits Subject to Public Charge Consideration**

The proposed rule specifies that cash assistance for income maintenance
includes Supplemental Security Income (SSI), cash assistance from the
Temporary Assistance for Needy Families (TANF) program and State or
local cash assistance programs for income maintenance, often called
\"General Assistance\" programs. Acceptance of these forms of public
cash assistance could make a non-citizen a public charge, if all other
criteria are met (as described below in the section \"Criteria for
Public Charge Determinations.\")

In addition, public assistance, including Medicaid, that is used for
supporting aliens who reside in an institution for long-term care \--
such as a nursing home or mental health institution \-- will also be
considered by INS and DOS officials as part of the public charge
analysis. Short-term institutionalization for rehabilitation is not
subject to public charge consideration.

**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. Such benefits include:

> Medicaid, Children\'s Health Insurance Program (CHIP), Food Stamps,
> the Special Supplemental Nutrition Program for Women, Infants and
> Children (WIC), immunizations, prenatal care, testing and treatment of
> communicable diseases, emergency medical assistance, emergency
> disaster relief, nutrition programs, housing benefits, energy
> assistance, child care services, foster care and adoption assistance,
> transportation vouchers, educational assistance, job training
> programs, and non-cash benefits funded under the TANF program.

Some of the above programs may provide cash benefits, such as energy
assistance, transportation or child care benefits provided in cash under
TANF or the Child Care Development Block Grant (CCDBG), and one-time
emergency payments under TANF. Since the purpose of such benefits is not
for income maintenance, but rather to avoid the need for on-going cash
assistance for income maintenance, they are not subject to public charge
consideration.

**Criteria for Public Charge Determinations**

The proposed rule states that an alien's mere receipt of cash assistance
for income maintenance, or being institutionalized for long-term care,
does not automatically make him or her inadmissible, ineligible to
adjust status to legal permanent resident, or deportable on public
charge grounds. The law requires that INS and DOS officials consider
several additional issues as well. Each determination is made on a
case-by-case basis.

**[Admission and Adjustment of Status]{.underline}**

Before an alien can be denied admission to the United States or denied
adjustment of status to legal permanent resident based on public charge
grounds, a number of factors must be considered by INS and DOS,
including: the alien\'s 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 \-- will determine
whether an alien is a public charge, including past or current receipt
of public cash benefits for income maintenance.

**[Deportation]{.underline}**

The INS can deport an alien on public charge grounds only if the alien
has failed to meet the benefit-granting agency\'s demand for repayment
of a cash benefit for income maintenance or for the costs of
institutionalization for long-term care. INS may initiate removal
proceedings only if the benefit-granting agency has the legal authority
to demand repayment and has: chosen to seek repayment within five years
of the alien\'s entry into the United States; obtained a final judgment;
taken all steps to collect on that judgment; and been unsuccessful in
those attempts.

Even if these conditions are met, the alien is not deportable on public
charge grounds if the alien can show that he or she received public cash
benefits for income maintenance or was institutionalized for long-term
care for causes that arose after entry into the United States.

**Other Public Charge Clarifications**

There is no public charge test for naturalization.

Public charge is not a factor in whether a non-citizen can sponsor a
relative to come to the United States.

Benefits received by one member of a family are not attributed to other
family members for public charge purposes, unless the cash benefits
amount to the sole support of the family.

\-- INS \--

**Public Charge**

**INS Q&A**

**GENERAL**

**Ql: Why are the Department of Justice (DOJ) and the Immigration and
Naturalization Service (INS) issuing field guidance and a proposed
regulation concerning public charge, and what is the effect of these
documents?**

Al: DOJ and INS are issuing this guidance and proposed regulation to
alleviate growing public confusion over the meaning of the currently
undefined term \"public charge\" in immigration law and its relationship
to the receipt of Federal, State, or local public benefits. By defining
\"public charge,\" DOJ seeks to reduce the negative public health
consequences generated by the existing confusion and to provide aliens
with better guidance as to the types of public benefits that will and
will not be considered in public charge determinations. The guidance
defines \"public charge\" and gives examples of benefits that will and
will not be considered by INS officials for public charge purposes. It
also summarizes the existing law regarding public charge and explains
how the INS will administer these provisions.

**Q2:** **What does it mean to be a \"public charge\" under the
immigration laws?**

A2: An alien who is likely at any time to become a \"public charge\" is
ineligible for admission to the U.S. and is ineligible to adjust status
to become a lawful permanent resident. An alien who has become a public
charge can also be deported from the U.S., although this very rarely
happens. These provisions have been part of U.S. immigration law for
over 100 years, and the recent immigration reform and welfare reform
laws did not substantively change them. Both INS (in the U.S.) and the
Department of State (State) (overseas) make public charge
determinations.

**Q3:** **How is \"public charge\" defined, and when will this
definition be implemented?**

A3: The INS is issuing guidance and a proposed regulation that define
\"public charge\" for the first time. \"Public charge\" means an alien
who has become (for deportation purposes) or who is likely to become
(for admission/adjustment purposes) primarily dependent on the
government for subsistence. This definition is effective immediately. As
discussed below, INS and State will consider the receipt of cash
benefits for income maintenance purposes and institutionalization for
long-term care at government expense in determining dependence on the
government for subsistence.

**[IMPLEMENTATION]{.underline}**

**Q4:** **How do INS** **and State decide whether someone is admissible
or eligible for adjustment of status under the public charge rules?**

A4: In deciding whether an alien is likely to become a public charge,
the law requires that the INS (in the U.S.) or State (overseas) take
certain factors into account, including the alien\'s age, health, family
status, assets, resources, financial status, education and skills. The
government official examines all of these factors, looking at the
\"totality of the circumstances\" concerning the alien,

**Public Charge: Questions and Answers**

to make a forward-looking decision. No single factor - other than the
lack of an Affidavit of Support, if required - will be used as the sole
basis for finding that someone is likely to become a public charge, that
is, likely to become primarily dependent on the government for
subsistence. As described below, non-cash benefits and certain
special-purpose cash benefits will not be taken into account under the
totality of circumstances test.

**Q5:** **How does INS decide whether someone is deportable as a public
charge?**

A5: Deportations on public charge grounds are very rare because the
standards are very strict. Under the Immigration and Nationality Act, an
alien is deportable if he or she becomes a public charge within 5 years
after the date of entry into the U.S. for reasons not affirmatively
shown to have arisen since entry. The mere receipt of a public benefit
within 5 years of entry does not make an alien deportable as a public
charge. An alien is deportable only if (1) the state or other government
entity that provides the benefit has the legal right to seek repayment
from the alien or another obligated party (for example, a sponsor under
an affidavit of support), (2) the responsible program officials make a
demand for repayment; and (3) the alien or other obligated party, such
as the alien\'s sponsor, fails to repay. The benefit granting agency
must seek repayment within 5 years of the alien\'s entry into the United
States, obtain a final judgment, take all steps necessary to collect on
that judgment, and be unsuccessful in those attempts. Even if these
conditions are met, the alien has the opportunity to show that the
reasons he or she became a public charge arose after the alien\'s entry
to the U.S. An alien who can make such a showing is not deportable as a
public charge.

**Q6:** **What-kind of benefits are considered in deciding whether
someone is or is likely to become a public charge?**

A6: Not all publicly funded benefits are relevant to deciding whether
someone is or is likely to become a public charge. INS\' guidance and
proposed regulation clarify what kinds of benefits may and may not be
considered in making a public charge determination. In order to decide
whether an alien has become or is likely to become a public charge, INS
and State will consider whether the alien is likely to become primarily
dependent on the government for subsistence as demonstrated by either
(1) the receipt of public cash assistance for income maintenance
purposes, or (2) institutionalization for long-term care at government
expense (other than imprisonment for conviction of a crime). Short-term
institutionalization for rehabilitation is not taken into account for
public charge purposes.

Public benefits considered to be public cash assistance for income
maintenance include:

\(1\) Supplemental Security Income (SSI);

> \(2\) Temporary Assistance for Needy Families (TANF), but not
> including supplementary cash benefits excluded from the term
> \"assistance\" under TANF program rules or any non-cash benefits and
> services provided by the TANF program;
>
> \(3\) State and local cash assistance programs for income maintenance
> (often called state \"General Assistance,\" but which may exist under
> other names).

**Public Charge: Questions and Answers**

> In addition, the costs for institutionalization for long-term care,
> which may be provided under Medicaid or other programs, may be
> considered in making public charge determinations.
>
> While the receipt of these benefits may be considered by INS and State
> for public charge purposes, having received them does not
> automatically make someone a public charge. As explained above, the
> totality of circumstances test applies for admission and adjustment.
> For deportation, all of the procedural requirements, described above,
> apply.

**Q7:** **Are there public benefits that aliens can legally receive
without worrying that the INS-and State will consider them a public
charge?**

A7: Yes. Not all publicly funded benefits will be considered by the INS
or the State Department in deciding whether someone is or is likely to
become a public charge. The focus of public charge is on cash benefits
for income maintenance and institutionalization for long-term care at
government expense. Examples of benefits that will not be considered for
public charge purposes include:

> o 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, prenatal
> care, etc.) other than support for institutionalization for long-term
> care
>
> o Children\'s Health Insurance Program (CHIP)
>
> o Nutrition programs, including Food Stamps, the Special Supplemental
> Nutrition Program for Women, Infants and Children (WIC), the National
> School Lunch and Breakfast programs, and other supplementary and
> emergency food assistance programs
>
> o Housing benefits
>
> o Child care services
>
> o Energy assistance, such as the Low Income Home Energy Assistance
> Program (LIHEAP)
>
> o Emergency disaster relief
>
> o Foster care and adoption assistance
>
> o Educational assistance, including benefits under the Head Start Act
> and aid for elementary, secondary, or higher education
>
> o Job training programs
>
> o In-kind, community-based programs, services, or assistance (such as
> soup kitchens, crisis counseling and intervention, and short-term
> shelter).
>
> Note that not all categories of aliens are eligible to receive all of
> the types of benefits described above.

**Q8:** **Do the** INS **and State consider all types of cash assistance
in deciding whether someone is a public charge?**

A8: No. INS and State only consider cash benefits intended for income
maintenance purposes. Some programs provide cash benefits for special
purposes, such as the Low Income Home Energy Assistance Program
(LIHEAP), transportation or child care benefits provided in cash under

**Public Charge: Questions and Answers**

TANF or the Child Care and Development Block Grant (CCDBG), and one-time
emergency payments made under TANF to avoid the need for on-going cash
assistance. These special-purpose cash benefits are not for income
maintenance and therefore are not considered for public charge purposes.

**Q9:** **Normally Food Stamp benefits are given in the form of paper
coupons or an electronic benefit card that can be used at authorized
stores to buy food. However, in a few areas Food Stamp benefits are
given in the form of cash. If Food Stamp benefits are given in the form
of cash, can those benefits be considered for public charge purposes?**

A9: No. Food Stamp benefits will not be considered for public charge
purposes regardless of the method of payment because they are not
intended for income maintenance.

**Q10:** **Are health care benefits and enrollment in health insurance
programs like Medicaid and CHIP considered for public charge purposes?**

A10: No, not unless an alien is primarily dependent on the government
for subsistence as demonstrated by institutionalization for long-term
care at government expense. In particular, INS and State will not
consider participation in Medicaid or CHIP, or similar state-funded
programs, for public charge purposes. This approach will help to
safeguard public health, while still allowing INS and State to identify
people who are primarily dependent on the government for subsistence by
looking to the receipt of public cash assistance for income maintenance.
In addition, short-term institutionalization for rehabilitation will not
be considered for public charge purposes.

**Q11:** **Do the public charge field guidance and regulation change the
policy issued by the Food and Nutrition Service for the WIC Program in
WIC Policy Memorandum #98-7, dated March 19, 1998, \"Impact of
Participation in the WIC Program on Alien Status\"?**

A11: No. The new field guidance and regulation on public charge are
consistent with the WIC policy memorandum issued in 1998. The WIC policy
memorandum was developed based on agreements reached with the INS and
State. The new field guidance and regulation merely restate and
reinforce the agreement previously reached on the impact of
participation in the WIC Program and alien status. As noted above, INS
and State will not take WIC participation into account for public charge
purposes.

**[AFFIDAVIT OF SUPPORT]{.underline}**

**Q12:** **What is an affidavit of support, and who is required to have
one?**

A12: The Personal Responsibility and Work Opportunity Reconciliation Act
and the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Section 213A, created a new requirement for all
family-sponsored immigrants and those employment-based immigrants who
will work for a close relative or for a firm in which a U.S. citizen or
lawful permanent resident relative holds a 5 percent or greater
ownership interest. An alien who applies for an immigrant visa or
adjustment of status in one of these categories on or after December 19,
1997,

**Public Charge: Questions and Answers**

must have an affidavit of support (AOS), INS Form I-864, from a
qualifying sponsor or he or she will be found inadmissible as a public
charge. An AOS is a legally binding promise that the sponsor will
provide support and assistance to the immigrant if necessary.

The AOS must be signed by a sponsor who meets certain statutory
requirements. Sponsors must be able to demonstrate that they are able to
maintain the sponsored alien(s) at an annual income of not less than 125
percent of the federal poverty level. (Currently, 125 percent of the
poverty level for a family of four is \$20,875.) If the family member
who filed the visa petition does not have enough money to sponsor the
alien(s), then another person can sign an AOS as a \"joint sponsor,\"
indicating that he or she is willing to support the immigrant in the
future if needed. The sponsor\'s obligation under the AOS lasts until
the immigrant has naturalized, has worked or can be credited with 40
quarters of work, leaves the U.S. permanently, or dies. The sponsor and
joint sponsor (if any) must also agree to repay the government if the
immigrant uses certain benefits during that time and if the government
asks the sponsor for repayment.

> Before IIRIRA, aliens were sometimes sponsored using INS Form I-134,
> but these affidavits of support were found by some courts not to be
> legally enforceable. Form I-134 may still be used for categories of
> aliens who are not required to use the new, enforceable affidavit of
> support, such as students, parolees, or diversity immigrants.

**Q13:** **Can an affidavit of support help an alien demonstrate to the
INS and State that he or she is not likely to become a public charge?**

A13: Yes. Since many aliens who apply for an immigrant visa or
adjustment of status after December 19, 1997, will have an affidavit of
support, INS and State will take that into account in deciding whether
the alien is likely to become a public charge in the future. Even though
an AOS is necessary for some immigrants and helps to convince the
government that they will not become dependent on the government for
subsistence in the future, INS or State can still deny an immigrant
admission or adjustment of status under the totality of circumstances
test based on other factors such as age, health, employment, and
education, as described above.

**Q14:** **If lawful permanent residents want to sponsor a relative to
come to the U.S., will it hurt their chances if they are receiving or
have received public benefits in the past?**

A14: Sponsors are not subject to public charge screening under the
immigration laws; the question is whether the alien being sponsored is
likely to become a public charge. Sponsors must satisfy a different
test: they must be able to demonstrate that they are able to maintain
the sponsored immigrant(s) at an annual income of not less than 125
percent of the federal poverty level.

**Q15:** **Why does the new** INS **affidavit of support form ask about
whether a sponsor or member of his or her household has received
\"means-tested public benefits\" in the past 3 years?**

A15: The purpose of this question is to ensure that the INS or State
official making the decision has access to all facts that may be
relevant in determining whether the 125 percent test, described above,
is met. Any cash benefits received by the sponsor, such as SSI or cash
TANF, cannot be

**Public Charge: Questions and Answers**

counted toward meeting the 125 percent income threshold, but they are
not held against the sponsor if he or she can meet the 125 percent test
through other resources. The receipt of other means-tested public
benefits - such as Food Stamps, Medicaid, or CHIP - have no effect on
sponsorship.

**Q16:** **What happens if a sponsor who has signed the new affidavit of
support dies?**

A16: The obligation to support the alien terminates with the sponsor\'s
death, but the sponsor\'s estate would still be obligated to repay any
obligations accrued before the sponsor\'s death. If there is a joint
sponsor and only one of the sponsors dies, the remaining sponsor would
remain liable under the affidavit of support.

> For deportation purposes, if a sponsor has died and there is no joint
> sponsor, there is no legal obligation under the affidavit of support
> to repay any means-tested benefits. This means that the first prong of
> the test for deportation would not be met and the sponsored alien
> would not become deportable based on the affidavit of support.

**[EXAMPLE SITUATIONS]{.underline}**

**Q17:** **Are there categories of aliens who are not subject to public
charge determinations?**

A17: Yes. Refugees and asylees are not subject to public charge
determinations for purposes of admission or adjustment of status.
Amerasian immigrants are also exempt from the public charge ground of
inadmissibility for their initial admission to the U.S. In addition,
various statutes contain exceptions to the public charge ground of
inadmissibility for aliens eligible for adjustment of status under their
provisions, including the Cuban Adjustment Act, the Nicaraguan
Adjustment and Central American Relief Act (NACARA) and the Haitian
Refugee Immigration Fairness Act (HRIFA).

**Q18:** **If an alien has received cash public benefits in the past,
but has stopped, will INS or State\--find that he or she is likely to
become a public charge?**

A18: Past receipt of cash public benefits does not automatically make an
alien inadmissible as likely to become a public charge. It is one factor
that will be considered under the totality of the circumstances test to
decide whether the alien is likely to become a public charge in the
future. For example, if an alien received benefits in the past during a
period of unemployment, but now has a job and is self-supporting, he or
she would most likely not be found inadmissible as a public charge. The
more time that has elapsed since the alien stopped receiving the
benefit, the less weight it will be given. The length of time that an
alien received benefits and the amount of benefits received are also
relevant considerations.

**Q19:** **If an alien has received public benefits in the past, does
the alien have to repay them to avoid having** INS **or State find that
he or she inadmissible as a public charge, or ineligible to adjust
status and become a lawful permanent resident?**

A19: No. INS and State do not have authority to request that aliens
repay public benefits in connection with visa issuance, admission, or
adjustment of status.

**Public Charge: Questions and Answers**

**Q20:** **Who decides whether an alien must repay a public benefit he
or she has received in the past?**

A20: The requirements and procedures concerning any demand for repayment
of a public benefit are governed by the specific program rules
established by law and administered by the benefit granting agencies, or
by state and local governments, not by INS or State. The public charge
rules in the immigration law do not change these program requirements.

**Q21:** **If a member of an alien\'s family is receiving or has
received public benefits, but the individual alien hasn\'t, will INS or
State hold this against the alien for public**

> **charge purposes?**

A21: In most cases, no. As a general rule, receipt of benefits by a
member of an alien\'s family is not attributed to the alien who is
applying to INS or State for admission or to INS for adjustment of
status to determine whether he or she is likely to become a public
charge. The only time this general rule would not apply would be if the
family were reliant on their family member\'s cash public benefits as
its sole means of support.

In particular, alien parents do not have to worry that the INS or State
will consider them to be public charges if they enroll their children in
programs for which they are eligible, unless these are cash programs
which provide the sole financial support for the family. This is true
whether the children are U.S. citizens or non-citizens.

If a parent enrolls in TANF for cash benefits for the \"child only,\"
this could be used by INS or State for a public charge determination
concerning the parent if this cash is the sole support for the family.
However, if there are other sources of support or a parent is working,
then the cash assistance would not represent the family\'s sole source
of support.

**Q22:** **If an alien receives public benefits, will it hurt his or her
chances to become a U.S. citizen?**

A22: No. There is no public charge test for naturalization purposes, so
the receipt of benefits is not relevant, as long as they were legally
received. Nor is there a requirement to repay benefits received in the
past in order to qualify for citizenship.

**Q23: Can a naturalized citizen lose his or her citizenship because of
receiving public benefits?**

A23: No. Nobody can lose his or her citizenship because of receiving
public benefits. Once an immigrant becomes a citizen, he or she can
receive benefits on the same basis as all-other citizens. Citizens
cannot be deported or barred from reentering the U.S. after an
international trip based on the receipt of public benefits.

**Q24:** **Does an alien have to stop participating in some benefit
programs in order to adjust status and become a lawful permanent
resident?**

A24: No, but someone who is receiving a cash benefit for income
maintenance at the same time that he or she applies to become a lawful
permanent resident may be considered ineligible for adjustment as a
public charge. An alien who has received a cash benefit in the past
could

**Public Charge: Questions and Answers**

reapply to the INS after he or she stops receiving the benefit, and
might or might not be considered a public charge.

Someone who is receiving a non-cash benefit - for example, WIC, Food
Stamps, Medicaid, or CHIP - would not have to stop participating in the
program in order to be eligible to adjust to lawful permanent resident
status.

As explained earlier, in all of these situations, the usual \"totality
of the circumstances\" test would apply.

**Q25: If a lawful permanent resident has received public benefits and
leaves the country, will INS stop him or her from returning on public
charge grounds?**

A25: In general, a lawful permanent resident who has been outside the
U.S. for 6 months or less is not screened for public charge purposes
when he or she returns. This is because lawful permanent residents who
leave for 6 months or less at a time are not considered applicants for
admission when they return, and none of the grounds of inadmissibility,
including public charge, apply to them.

There are exceptions to this general rule if (1) the alien has abandoned
his or her status as a lawful permanent resident; (2) the alien has
engaged in certain illegal activity; (3) the alien was in removal
proceedings before he or she left the country; or (4) the alien attempts
to enter other than at a port of entry. See INA section 101(a)(13)(C)
for more details on these exceptions.

**Q26:** **Can an LPR continue to receive benefits while he or she is
out of the country?**

A26: If an LPR plans to be out of the country for longer than a month,
he should check with the agency providing the benefit to determine the
rules. In general, people are not allowed to receive many benefits if
they are absent from the country or state of residence for longer than
30 days. If an LPR receives benefits improperly, it can hurt his chances
of re-entering the U.S. or becoming a citizen.

**Q27:** **If a refugee has adjusted to LPR status and then leaves the
country for more than 180 days - is he or she at risk of being found to
be a public charge and denied reentry?**

A27: As noted above, refugees are exempt from public charge
determinations for their admission and adjustment to LPR status. Public
charge has never been a problem for refugees who travel and return to
the U.S., and nothing in the welfare reform law or immigration reform
law has changed this.

**Q28:** **When an LPR returns from an international trip, can INS make
her pay back Medicaid or Food Stamps that she or her children used
before?**

A28: No. INS does not have the authority to ask immigrants to pay back
these benefits. If an alien has received benefits improperly (e.g., if a
person claims to be a resident of a state for purposes of eligibility
when she is not a resident, or if she does not tell a caseworker about
all of her income),

**Public Charge: Questions and Answers**

it is up to the benefit-granting agency to request repayment, based on
the rules governing that program. Typically a benefit-granting agency
would only request repayment in situations involving fraud or
overpayment, and it would follow its procedural rules involving notice
to the individual and the right to appeal.

**Q29: What if an alien has never used cash welfare and is not residing
in a nursing home. Can the INS still deny him a green card because they
think he might use cash welfare in the future?**

A29: Yes, it is possible. INS and State officials must look at all of
the factors listed above to determine if a person can support himself in
the future. If an alien\'s current situation related to age, health,
resources, and the other statutory factors does not satisfy them that
the alien is likely to be able to be self-supporting in the future, then
they can refuse to grant a visa or approve adjustment of status, even if
he is not currently receiving public cash assistance.

**Q30:** **What if a person is not receiving cash assistance but is very
sick and needs an extended period of care in a nursing home or other
long-term care institution? Will she have trouble getting her Permanent
Resident Card (\"green card\")?**

A30: Yes. If someone is living in a nursing home or has a serious
long-term illness that requires institutionalization, she will probably
have trouble getting a green card unless she can show that she can get
the care she needs without using Medicaid or other government-funded
health programs (e.g., county aid). However, a short-term stay in a
nursing facility, for example, to physically rehabilitate after surgery,
will not be used to deny a green card. The alien is not deportable on
public charge grounds if the alien can show that she received benefits
for causes that arose after entry into the U.S.

**Q31:** **An alien who is primarily dependent on the government for
subsistence as demonstrated by the institutionalization for long-term
care at government expense can be found deportable as a public charge.
Does this mean that INS will be conducting raids in nursing homes or
other long-term care institutions?**

A31: No. INS will not send investigators into nursing homes or other
long-term care facilities to look for aliens who might be deportable as
public charges. INS may use information concerning institutionalization
if it comes to INS\' attention through other avenues, but the only way
an alien could be found deportable is if all the procedural requirements
described above were met.

**Q32:** **If I\'m eligible to self-petition for adjustment of status
under the Violence Against Women Act (VAWA), do I have to show that I\'m
not likely to become a public charge?**

A32: The Administration is still considering the extent to which
self-petitioners under VAWA are subject to the public charge
requirements, and will address this in future guidance. The law does
make clear that self-petitioners under VAWA do not need to submit an
affidavit of support with their application, unlike other family-based
immigrants.

**Public Charge: Questions and Answers**

**Q33:** **Cuban/Haitian entrants are eligible to receive certain public
benefits under welfare reform. If they receive such benefits, will they
be barred from adjusting status because they will be considered public
charges?**

A33: The answer depends on how they become eligible to adjust status.
There are statutory exceptions to the public charge ground of
inadmissibility for those Cubans who are eligible to adjust to lawful
permanent resident status under the Cuban Adjustment Act and NACARA and
for those Haitians who are eligible to adjust status under the HRIFA.
Cuban/Haitian entrants are subject to the usual public charge rules if
they seek adjustment under other provisions of law that do not contain
public charge exemptions.

**Q34:** **Certain Amerasian entrants are eligible to receive public
benefits under welfare reform. If they receive such benefits, will they
be considered public charges?**

A34: Amerasian entrants are admitted to the U.S. as lawful permanent
residents (LPRs), and they are exempt from the public charge ground of
inadmissibility at their initial admission. In most cases, the issue of
public charge would never come up again, unless the alien leaves the
U.S. for more than 6 months and seeks readmission. At that time, the
exemption from public charge screening would no longer apply and the
alien would be treated like any other LPR under the totality of the
circumstances test.

**Q35:** **If an alien has been in the U.S.** **since January 1, 1972,
and wants to become a lawful permanent resident under the \"registry\"
provision of the Immigration and Nationality Act, section 249, is there
a public charge test?**

A35: No. Public charge is not a factor for \"registry\" aliens under
section 249.

**Q36:** **Is it improper for an immigration or consular officer to ask
non-citizens at an airport or in an interview whether they have received
public benefits in the past, or whether someone in their family has?**

A36: No. Immigration or consular officers can ask questions about
whether a non-citizen or someone in his or her family is receiving or
has received public benefits in the past. Non-citizens should answer
such questions completely and truthfully. If an alien tells an
immigration or consular officer that he or she has received a benefit
that is exempt from consideration for public charge purposes, such as
Food Stamps or Medicaid, the officer will not use that information in
deciding whether the alien is likely to become a public charge.

Q37: **INS** **is publishing this public charge definition as a proposed
rule for notice and comment. What happens if an alien receives one of
the \"safe\" benefits- that is, a supplemental, non-cash benefit and the
final rule is different from the proposed rule - can aliens rely on the
field guidance?**

A37: Aliens may rely on INS\' field guidance in determining the benefits
that they may safely accept before the final rule is issued. If the
final rule is different from the proposed rule, INS will issue
additional guidance at that time designed to ensure that non-citizens
who relied on the current guidance will not suffer harsher immigration
consequences based on that reliance.

\-- INS \--