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In the Wake of the Financial Crisis, USCIS Issues Fact Sheet Re Public Benefits and Immigration Status

In times of economic hardship, many consider turning to U.S. government programs for assistance.  However, those with pending or contemplated permanent residence cases run the risk of being found "likely to become a public charge" should they receive benefits under certain programs.  Such a finding would make them "inadmissible" to the U.S. and result in denial of the I-485, the application to adjust status to permanent resident.

As a point of clarification, "inadmissible" in a public charge context means "not admissible as a permanent resident."  Thus, applicants for permanent residence physically present in the U.S. are nonetheless applying for "admission." 

The Immigration Service recently issued a fact sheet clarifying what particular benefits programs carry this risk.  The key characteristic of such a program is that benefits comprise "cash assistance for income maintenance," or cash payments for long-term support.  These include Supplemental Social Security (SSI), cash assistance from the Temporary Assistance to Needy Families (TANF) program, and state "General Assistance" programs disbursing cash support.  In addition, Medicaid support for foreign nationals residing in long-term care facilities may result in a public charge finding.

Foreign nationals suffering economic hardship should take note of two points.  First, participation in these programs is not by itself a basis for a "public charge" finding.  The Immigration Service emphasizes that it takes a number of additional factors into consideration, including age, health, family status, assets, resources, financial status, education and skills.  Therefore, the "totality of the circumstances," as the guidance from the USCIS terms it, is the basis for the decision about whether the individual is likely to become a public charge.  The sole factor that by itself can result in an adverse finding is the lack of a required affidavit of support.

A second important point is that there are a large number of assistance programs that carry no "public charge" risk to foreign national participants.  These include programs for short-term or temporary help, notably unemployment compensation, but also health insurance (including Medicaid) and other health services other than support for long-term institutional care.  They also include non-cash programs under TANF such as subsidized child care or transit; and cash benefits that have been earned, such as Title II Social Security, government pensions or veterans benefits.

Foreign nationals needing economic assistance may take advantage of large number of additional government programs without risk of immigration consequence.  Generally, these comprise benefits to meet temporary food, shelter, health care needs of individuals and families; as well as work-related benefits.  Thus, there is no immigration risk to receiving benefits under nutrition programs such as the Food Stamps and the Women, Infants and Children (WIC) supplemental nutrition programs; the National School Lunch and School Breakfast programs, and federally-funded food pantries or other food distribution services.  Also included are housing support services such as the Low Income Home Energy Program and emergency shelter.  Health benefits without public charge risk include Children's Health Insurance Program, public assistance for immunizations against and treatment of communicable diseases, emergency medical services, and, as noted above, Medicaid.   Finally, education and training programs including public education and job training, as well as programs that can support working families, including subsidized or other child care benefits carry no risk from a public-charge standpoint.

In sum, a non-resident receiving assistance under any one of a large number of non-cash or special-purpose cash benefits is not subject to a public charge consideration.  An itemized list of such programs compiled by the Immigration Service may be found on the USCIS web site.   For those non-residents collecting benefits under any of the long-term cash programs, the possibility of public charge will be assessed against the background of all other personal circumstances.

A final point important for foreign nationals to understand is the difference between "public charge" as a ground of inadmissibility and as a ground of deportability.  The information in this article concerns the former, which applies to non-residents with pending or contemplated permanent residence cases.  "Deportability," on the other hand, applies to those who have already adjusted status to permanent resident, who may be deported if found to be a public charge.  However, this is a very rare occurrence.  Those permanent residents who have become U.S. citizens, of course, face neither possibility.

For more information on the immigration consequences of receiving public benefits, please contact us.

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