DEPARTMENT OF HEALTH & HUMAN SERVICES  
Health Care Financing Administration  
Center for Medicaid and State Operations  
7500 Security Boulevard Baltimore, MD 21244-1850  
  
May 26, 1999  
  
Dear State Health Official:  
  
I am writing to inform you about new guidance from the Immigration and Naturalization Service (INS) that 
clarifies that the receipt of Medicaid or Children's Health Insurance Program (CHIP) benefits, except in the 
case of institutionalization for long term care, cannot be considered by INS and State Department officials 
when making public charge determinations. This guidance should remove a major perceived barrier to 
enrollment in Medicaid and CHIP, as well as other benefits, for otherwise eligible immigrants.  
  
The INS has issued a Notice of Proposed Rulemaking ["NPRM"] and a corresponding memorandum to INS 
Regional Directors ["Memorandum"] regarding the receipt of Federal, State, and local public benefits in public 
charge determinations. Both documents were published in the Federal Register on May 26, 1999, and are 
available on the HHS website (www.os.dhhs.gov). The Memorandum states that effective immediately the INS 
will adopt the public charge definition described in the NPRM until a final rule is published. The definition 
referenced in the documents will also apply to State Department public charge determinations, per a State 
Department cable transmitted the same day.  
  
Recent changes in the welfare and immigration laws, along with changes in the Medicaid program, have 
created some confusion about how Medicaid should be considered in the determination of whether an 
individual is a "public charge". There have been documented instances in which individuals have been denied 
re-entry to the United States because they received Medicaid. Moreover, individuals have been told that receipt 
of Medicaid or CHIP may have a negative effect on their immigration status. These cases have translated into 
widespread concern in the immigrant community about legal receipt of Medicaid or CHIP, even where the 
beneficiary is a citizen child.  
  
Under current law, the determination that an alien may be or is likely to become a "public charge" may affect 
his or her immigration status. The issue arises when an alien seeks to obtain a visa to enter or reenter the 
United States, or seeks to adjust status from one immigration status to become a lawful permanent resident. 
Legal immigrants who already have their legal permanent residence status are only faced with public charge 
determinations if they travel outside of the United States for longer than 180 days (6 months). In rare cases, the 
issue may also arise in the context of deportation.  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  Page 2 -Dear State Health Official:  
  
The NPRM and the Memorandum clarify that the receipt of Medicaid or CHIP benefits will not be considered 
in making a public charge determination, except in the case of an alien who is primarily dependent on the 
government for subsistence as demonstrated by institutionalization for long-term care at government expense. 
This exception will not include short-term rehabilitation stays in long-term care facilities. The INS guidance 
also states that receipt of Medicaid or CHIP benefits does not prevent immigrants from becoming sponsors 
under the new affidavit of support.  
  
Since the receipt of Medicaid or CHIP benefits, with the one exception of institutionalization for long-term 
care,  cannot  be  considered  in  making  a  public  charge  determination,  a  major  barrier  to  enrollment  of 
immigrant children and families in Medicaid and CHIP is removed. State efforts to enroll these eligible 
children and families should be greatly facilitated.  
  
With respect to institutionalization for long-term care, these benefits may not be the sole factor in making a 
public charge determination. The NPRM and Memorandum state that INS and State Department officials must 
consider the totality of circumstances in determining whether the individual meets the public charge definition 
of someone who is likely to become primarily dependent on the government for subsistence. At a minimum, 
this includes consideration of the alien's age, health, family status, assets, resources, financial status, education 
and skills.  
  
For cases where institutionalization for long-term care is considered in making a public charge determination, 
the policy announced by INS does not change the policy announced in my letter of December 17, 1997 to State 
Medicaid Directors regarding release of information to INS or the State Department regarding receipt of 
Medicaid benefits. In that letter, we indicated that Section 1902 (a)(7) of the Social Security Act requires 
States to safeguard information regarding applicants for and recipients of Medicaid benefits and prohibits 
disclosure of that information to an outside entity unless it is directly connected to the administration of the 
State plan. We have determined that the INS and State Department public charge determinations would not be 
connected to the administration of the State plan, unless such determinations will directly assist the State in 
recovering outstanding debts from an alien (most commonly involving overpayments or fraud). States are 
encouraged to adopt similar restrictions under separate CHIP programs.  
  
We have enclosed a fact sheet and frequently asked questions and answers about public charge determinations. 
We strongly encourage you to use your existing children's health insurance outreach efforts to educate 
providers, eligibility and enrollment counselors, and other state workers who interact with low-income families 
about this new guidance and its significance for uninsured legal aliens who are potentially eligible for health 
insurance options.  
  
  
  
  
 
 
 
 
 
 
 
 
 
 
 
  Page 3 -Dear  State Health Official:  
  
If you have any questions, please contact your regional office.  
  
Sincerely,  
/s/  
  
Sally K. Richardson  
Director  
  
Enclosures  
 
 
cc:  
All HCFA Regional Administrators  
  
All HCFA Associate Regional Administrators for Medicaid and State Operations  
  
Lee Partridge  
Director, Health Policy Unit  
American Public Human Services Association  
  
Joy Wilson  
Director, Health Committee  
National Conference of State Legislatures  
  
Matt Salo  
Senior Health Policy Analyst  
National Governors' Association  
  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  Department of Justice  
Immigration and Naturalization Service  
FACT SHEET  
5/25/99  
  
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.  
  
  
1 
  
 
 
 
 
 
 
 
 
  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.  
 
 
2 
  
  
 
 
 
 
 
 
 
 
 
 
 
  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 assistance, 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  
  
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  
  
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.  
  
3 
  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.  
  
4 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  U.S. Department of Justice  
  
Questions and Answers  
  
Public Charge 
  
GENERAL  
  
Q1:   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?  
  
A1:   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.  
 
Prepared by the Office of Public Affairs (202) 514-2648 Internet: www.ins.usdoj.gov  
 
  
 
 
  
 
  
 
 
  Public Charge: Questions and Answers  
Page 2 
 
 
 IMPLEMENTATION  
 
  
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, 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  
(more)  
  
  
  
   Public Charge:  
Page 3  
Questions and Answers  
  
  
  
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).  
  
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:  
  
  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  
  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 Breakfast programs, and 
other supplementary and emergency food assistance programs  
  Housing assistance  
  Child care services  
  
  
 
  
 
 
 
  Public Charge: Questions and Answers  
Page 4  
 
  
  
  
  Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)  
  Emergency disaster relief  
  Foster care and adoption assistance  
  Educational assistance, including benefits under the Head Start Act and aid for elementary, 
secondary, or highereducation  
  Job training programs  
  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 TANF or 
the Child Care and Development Block Grant (CCDBG), and onetime 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?  
  
Q10:   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.  
  
  
:  
  
 
 
 
  Public Charge: Questions and Answers  
Page 5  
  
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,  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 WlC policy 
memorandum issued in 1998. The WlC 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 WlC Program and alien status. As 
noted above, INS and State will not take WlC participation into account for public charge purposes.  
  
AFFIDAVIT OF SUPPORT  
  
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, must have an affidavit 
of support (AOS), INS Form 1-864, 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.  
  
  
 
 
 
 
 
 
 
 
 
   Public Charge: Questions and Answers 
Page 6  
 
  
  
  
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 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.  
  
  
 
  
 
  Public Charge: Questions and Answers  
Page 7  
 
  
  
EXAMPLE SITUATIONS  
  
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 (HR/FA).  
  
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.  
  
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?  
  
  
 
 
 
 
 
 
  Public Charge: Questions and Answers 
Page 8  
 
  
  
  
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 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.  
  
  
 
  
 
 
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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 
&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 reentering 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), it is 
up to the benefit-granting agency to request repayment, based on the rules governing that program. 
Typically a benefit-granting agency would  
  
  
 
  
 
 
 
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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.  
  
  
  
  
  
 
 
 
 
 
 
 
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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.  
    
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  
  
  
 
  
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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.