Immigration: Frequently Asked Questions about “Public Charge”
Released: 2018-09-19T00:00:00

Introduction

Immigration law has long contained exclusion and removal provisions designed to limit government spending on indigent non-U.S. nationals (aliens). Even before the advent of federal immigration regulation in the second half of the 19 th century, the laws of some states restricted the entry or continued presence of "foreign paupers." Federal law has imposed immigration restrictions of this nature since one of the earliest federal immigration statutes—the Immigration Act of August 3, 1882—provided for the exclusion of "any person unable to take care of himself or herself without becoming a public charge."

In current law, the Immigration and Nationality Act (INA) renders an alien inadmissible to the United States if he or she "is likely at any time to become a public charge." In practice, this provision is most relevant to aliens applying for immigrant visas abroad and to aliens in the United States applying for adjustment of status to become lawful permanent residents (LPRs). The INA also contains a provision that subjects aliens admitted into the United States who become public charges to deportation in some circumstances, but in practice and under controlling case law the deportation provision is rarely applied.

The Department of Homeland Security (DHS) and the Department of State (DOS) have primary responsibility for implementing the INA's public charge provisions. DHS's U.S. Citizenship and Immigration and Services (USCIS) may make a public charge determination when an alien applies to adjust to LPR status. Abroad, DOS consular officers may make a public charge determination when an alien applies for a visa.

Because the INA does not define the term "public charge," the determination of whether an alien seeking an immigrant visa or adjustment of status is inadmissible on public charge grounds turns largely on standards set forth in agency guidance materials. Currently, that guidance defines a "public charge" as a person who becomes or is likely to become primarily dependent on either of two types of public benefits: (1) public cash assistance for income maintenance, or (2) government-funded institutionalization for long-term care.

The INA's public charge provisions have drawn heightened attention recently in light of indications that the Trump Administration intends to establish new rules for their interpretation and application. Specifically, DHS has informed the Office of Management and Budget (OMB) that it "will propose regulatory provisions guiding the inadmissibility determination on whether an alien is likely at any time to become a public charge." The new rules have not been published yet. In addition, in January 2018, DOS revised the Foreign Affairs Manual (FAM) to instruct consular officers to consider a wider range of public benefits when determining whether visa applicants who have received or are currently receiving benefits are inadmissible on public charge grounds. This report analyzes frequently asked questions (FAQs) regarding the scope of the INA public charge provisions under current law, including the agency guidance that currently governs DHS and DOS officials who determine whether individual aliens are inadmissible as public charges.

What is public charge? How and where is it defined?

The INA contains two public charge provisions: a ground of inadmissibility, and a ground of deportability. The first applies generally to aliens who have not been admitted into the United States or are physically present in the United States (regardless of whether they were lawfully admitted) and are applying for adjustment to LPR status; the second applies generally to aliens who are in the United States following admission.

As for the ground of inadmissibility, Section 212 of the INA states that "[a]ny alien who … is likely at any time to become a public charge is inadmissible." The statute specifies that immigration officials applying the provision must consider, "at a minimum," the alien's age, health, family status, financial resources, and skills and education. But the statute does not define the term "public charge" or establish what it means to "become a public charge." As a result, agency guidance supplies the working definition.

USCIS, the agency within DHS that adjudicates applications for adjustment to LPR status of certain aliens in the United States, defines "public charge" for inadmissibility purposes as covering "an individual who is likely to become 'primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.'" DOS's Foreign Affairs Manual (FAM), which provides guidance to consular officers who adjudicate visas abroad, defines "public charge" in substantially the same way as USCIS. However, as discussed further below, the FAM diverges from the USCIS guidance in instructing consular officers to consider an alien's past receipt of any type of public assistance (not just cash assistance for income maintenance) when determining whether an alien is likely to become dependent in the future on cash assistance for income maintenance or government-funded long-term care.

As for deportability, Section 237 of the INA states that "any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable." However, under long-standing case law of the Board of Immigration Appeals, an alien can only be deported under this provision if the elements of a three-part test are satisfied: (1) a "[s]tate or other governing body must … impose a charge for [] services rendered to the alien," (2) "authorities must make demand for payment of the charges" within five years of the alien's entry into the United States, and (3) the alien must fail to pay. Deportations on public charge grounds under this test have rarely occurred.

Who is subject to a public charge determination of inadmissibility? Who makes the determination?

Most aliens applying for an immigrant visa, for admission at a port of entry, or for adjustment to LPR status are subject to a determination of inadmissibility based on public charge grounds.

As previously noted, a public charge determination of inadmissibility typically is made by a USCIS immigration official (when an alien residing in the United States applies for adjustment to LPR status) or by a DOS consular officer (when an alien applies for an immigrant visa abroad to seek admission to the United States as an LPR).

The public charge ground of inadmissibility also applies to aliens applying for nonimmigrant visas to be admitted to the United States temporarily for a particular purpose, such as tourism, study, or temporary work. In practice, however, DOS consular officers rarely make public charge determinations for aliens seeking admission as nonimmigrants. Most applicants for nonimmigrant visas who would be deemed likely to become dependent on public cash assistance or government-funded long-term care are also inadmissible under Section 214(b) of the INA as presumptive immigrants—a much broader ground of inadmissibility than public charge. The FAM instructs consular officers that "[i]n almost all cases, a[] [nonimmigrant visa] applicant who is ineligible under INA 212(a)(4) will likely also be ineligible under INA 214(b)" and that "if an applicant cannot overcome INA 214(b), [the officer] should not expend resources on pursuing a possible INA 212(a)(4) ineligibility."

Who is exempt from public charge determinations of inadmissibility?

Some categories of aliens are not subject to the public charge determination when applying for visas, seeking admission to the United States, or applying for adjustment of status. These categories include the following:

Applicants for refugee status or asylum, as well as refugees and asylees seeking adjustment to LPR status; Amerasian aliens seeking admission pursuant to the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988; Cuban and Haitian entrants seeking admission or adjustment of status as described in the Immigration Reform and Control Act of 1986; Nicaraguans and other Central Americans adjusting status as described in the Nicaraguan Adjustment and Central American Relief Act of 1997; Victims of certain crimes assisting law enforcement (U-visa applicants); Victims of human trafficking assisting law enforcement (T-visa applicants); Victims of abuse, abandonment, or neglect by a parent (special immigrant juveniles applying for adjustment of status); Syrian asylees adjusting status pursuant to P.L. 106-378 ; certain "aged, blind, or disabled" applicants adjusting status under Section 245A of the INA; and other exempt classes.

What factors do officials consider in their determination of inadmissibility based on public charge grounds?

Immigration authorities are required by statute to "at a minimum" consider the following factors when determining whether aliens are inadmissible or ineligible for adjustment of status on public charge grounds: age, health, family status; assets, resources, and financial status; and education and skills. Immigration and consular officers may also consider an affidavit of support submitted by an alien's petitioner, which may demonstrate that the applicant can rely on the financial support of a sponsor and thus mitigate concerns that the applicant will come to rely upon government-funded assistance, as discussed below. (The statute makes affidavits of support mandatory for some immigrant visa applicants, including family-based immigrants, by rendering the applicant automatically inadmissible if the petitioner fails to provide an affidavit. ) These factors fall within the totality of the circumstances that officials consider in making the prospective determination of whether an alien is likely to become a public charge and is therefore inadmissible.

What is an affidavit of support? How is it related to public charge?

The affidavit of support form is an enforceable contract between the visa applicant, the applicant's sponsor (usually the petitioner), and the government. Most family-based and certain employment-based immigrants are required to submit this form when applying for an immigrant visa or adjusting to LPR status.

An affidavit of support is intended to guard against the risk that a visa applicant will become a public charge if admitted to the United States or granted LPR status. In executing an affidavit, a sponsor agrees to provide support to maintain the applicant at an annual income not less than 125% of the federal poverty line and reimburse government entities for any "means-tested public benefit" that the government provides to the alien, until specified conditions are met (e.g., the immigrant naturalizes or works for a certain period of time).

If the petitioner fails to submit an affidavit of support where one is required, the alien is considered to fall under the public charge ground of inadmissibility on that basis alone. As noted above, in cases where an affidavit is submitted, it becomes one of the multiple factors for consideration under the totality of the circumstances test for public charge determinations. In the past, DOS had advised consular officers that "a properly filed, nonfraudulent I-864 (affidavit of support) shall normally be considered sufficient to overcome the [public charge] requirements." But DOS changed this guidance in January 2018 to require officers to "consider such affidavits as one factor in the totality of the circumstances," making clear that a visa applicant can be deemed inadmissible as a public charge notwithstanding the submission of an affidavit.

Which public benefits are currently considered in public charge determinations of inadmissibility?

USCIS and DOS differ from each other as to the range of benefits they consider when making public charge determinations (see Table 1 ).

USCIS, in making public charge determinations for aliens applying for adjustment to LPR status, only considers cash income-maintenance benefits and government-funded institutionalization for long-term care. Cash assistance for income maintenance, according to USCIS guidance, "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." Currently, an alien's past or current receipt of these benefits or of government-funded long-term care does not automatically lead to a determination of inadmissibility, but instead only factors into the prospective analysis under the totality of the circumstances test. In contrast, USCIS does not consider an alien's past or current receipt of other benefits when making public charge determinations for adjustment of status applicants—not even as a consideration under the totality of the circumstances test.

Until recently, public cash benefits and government-funded institutionalization for long-term care were also the only public benefits that DOS consular officers considered in making public charge determinations for visa applicants. The FAM, in its public charge-related guidance to consular officers who adjudicate visas abroad, tracks the USCIS definition of "public charge" for inadmissibility purposes. In January 2018, however, DOS revised the FAM to require consular officers applying this definition in individual cases to consider, under the totality of the circumstances test, "[p]ast or current receipt of public assistance of any type" by the alien or the alien's family. The FAM revisions did not change DOS's definition of "public charge"—which continues to mirror the USCIS definition—but instead changed only the scope of public benefits that consular officers must consider when applying that definition. As a result, in determining under the totality of the circumstances whether an alien is likely to become dependent on public cash assistance or government-funded long-term care in the future, consular officers now must consider (among other factors) the alien's receipt of any type of public benefits in the past or present.

In summary, under current agency guidance, receipt of benefits other than cash assistance for income maintenance or government-funded long-term care does not affect consideration of adjustment of status applications by USCIS, but may affect DOS's assessment of immigrant visa applications.

Why do USCIS and DOS consider different ranges of benefits when making public charge inadmissibility determinations under the same statute?

As discussed above, both USCIS and DOS administer the INA provision that establishes the public charge ground of inadmissibility—USCIS administers the provision with respect to applications for adjustment of status, and DOS administers it with respect to visa applications. Where more than one agency is charged with administering the same statute, the agencies' interpretations of the statute may and sometimes do diverge from each other. A federal court may sometimes resolve such agency divergence by ruling on the proper interpretation of the statute in a decision that constitutes controlling authority for multiple agencies. For example, with respect to the divergent USCIS and DOS guidance on the scope of benefits that immigration officials should consider when making public charge determinations, a decision by a federal court on the proper scope of benefits subject to consideration under the statute could constitute controlling authority for both agencies. Up to this point, however, no federal court appears to have decided whether either agency's current guidance on the scope of benefits subject to consideration complies with the statute, perhaps because, as discussed below, the public charge determinations of both USCIS and DOS are subject to judicial review only in limited circumstances.

If public charge is determined, can it be overturned?

If a USCIS officer denies an adjustment of status application based on a determination that the alien is inadmissible on public charge grounds, and the alien is thereafter placed in removal proceedings, in most circumstances the alien may renew the application before an immigration judge in those proceedings and request that the public charge determination be revisited. If the alien is not placed in removal proceedings, the law governing the availability of an appeal from USCIS's denial of an adjustment application is "complicated and varied." In short, there is no direct administrative appeal available from such a denial, and federal courts are divided as to whether they possess jurisdiction to review such denials.

Immigrant visa denials on public charge grounds by DOS generally are not subject to formal appeal or judicial review. However, the FAM states that applicants may overcome the public charge determination "by presenting evidence to convince [the consular officer] that the inadmissibility no longer applies." Consular officers may consider such evidence if it is submitted within one year from the date of the visa denial.

What is a public charge bond?

The INA authorizes the admission of aliens who are inadmissible as public charges if they post a bond in an amount that is determined to be "suitable and proper" and are otherwise admissible. Despite this statutory authorization, USCIS officers and DOS consular officers appear to employ public charge bonds only rarely.

How often have public charge grounds been applied to visa applications and applications to adjust status?

The number of aliens denied visas or adjustment of status due to a determination of inadmissibility on public charge grounds is difficult to quantify precisely. DHS does not compile statistics and share publicly the number of adjustment of status applications denied upon particular grounds of inadmissibility.

However, in the visa application context, DOS reports on the total number of immigrant and nonimmigrant visa refusals, and also breaks out the refusals by specific grounds of inadmissibility. In FY2017, there were 3,237 immigrant visa applications refused on public charge grounds. In that same year, just over 2,016 public charge refusals were overcome. In contrast, 51 nonimmigrant visa applications were refused on public charge grounds (out of a total of more than 13 million nonimmigrant visa applications), and 4 had that determination overcome in FY2017. However, refusals made in one fiscal year may be overcome in a subsequent fiscal year, making it difficult to determine from these statistics exactly how many visas were denied definitively on public charge grounds in a given year.

To put the number of refusals due to public charge determination into context, in FY2017, there were 280,835 immigrant visa applications refused in total, and 204,720 of those refusals were overcome (by the submission of additional "evidence that the ineligibility did not apply, by approval of a waiver, or by other relief as provided by law such as a bond"). In contrast, the total number of nonimmigrant visa applications refused was 3,450,673, and 738,098 of those were overcome.

Is the receipt of public benefits by family members of applicants considered in a public charge determination?

USCIS cites as the basis for its public charge policies long-standing agency guidance that states, in most circumstances, benefits received by the child or other family member of an applicant for adjustment of status do not bear on the public charge analysis:

Service officers should not attribute cash benefits received by U.S. citizen or alien children or other family members to alien applicants for purposes of determining whether the applicant is likely to become a public charge, absent evidence that the family is reliant on the family member's benefits as its sole means of support.

Thus, if an alien applies for adjustment of status, the receipt of benefits by someone in the alien's family does not enter into USCIS's public charge analysis unless the alien's family has no other means of support.

DOS takes a different approach for visa applications. Following revisions that took effect in January 2018, the FAM instructs DOS consular officers making public charge determinations to give broader consideration to benefits received by an applicant's family member:

A dependent family member's receipt of public benefits is a heavily negative factor in the totality of circumstances unless the applicant can demonstrate that his or her prospective income and assets with the income and assets of the others in the family will be sufficient for the family to overcome the poverty income guideline for the family.

Accordingly, unlike USCIS officers adjudicating adjustment of status applications, DOS consular officers adjudicating immigrant visa applications must consider a family member's receipt of public benefits as a "heavily negative factor" in the public charge analysis unless the applicant affirmatively shows that the family income will exceed the poverty threshold.

When will the Trump Administration's new rules be issued?

It is uncertain if or when the new rules will be issued. DHS has notified OMB that it plans to submit drafts of the proposed regulations for review. After the review is completed, a Notice of Proposed Rulemaking will be published in the Federal Register and the proposed regulations will most likely undergo the notice and comment process of agency rulemaking. That process takes a minimum of two months and can take much longer before the rule becomes final.