Public Charge

1
Public Charge

• Immigrants and Public Benefits
• Gabrielle Lessard
• National Immigration Law Center

2
Immigrant Access to Health Care

• Children in immigrant families are more likely to
  be poor and less likely to have health insurance
  or a regular source of medical care than children
  with citizen parents. (Urban Institute, 2001)
• Only 26 of immigrants have job-based health
  insurance. (Center on Budget and Policy
  Priorities, 2002)
• One-third of all children who are eligible for
  Medicaid, but not enrolled, are in immigrant
  families. (Center for Budget and Policy
  Priorities, 2002)

3
Immigrant Concerns

• Three quarters of low-income immigrants in New
  York and Los Angeles reported fears that use of
  public benefits would have adverse immigration
  consequences (Urban Institute, 2002)
• 32 of immigrants in Howard County, MD expressed
  fears that using health care could prevent them
  from getting a green card or becoming a citizen
  (FIRN, 2003)

4
History

• Immigration Act of 1882 blocked the entry of
  idiots, lunatics, convicts, and persons likely to
  become a public charge
• Mid-1990s Scrutiny of immigrant use of public
  benefits, including health care, on public
  charge grounds
• May 25, 1999 INS released proposed regulations
  and field guidance, effective immediately,
  clarifying public charge rules. 64 Fed. Reg.
  28676

5
Public Charge- Definition

• An immigrant who is likely to become primarily
  dependent on the government for subsistence, as
  demonstrated by either
• (i)the receipt of public cash assistance for
  income maintenance, or
• (ii)institutionalization for long-term care at
  government expense.
• 64 Fed. Reg. 28681 (May 25, 1999).

6
When is Public Charge an issue ?

•  
• Visa application at U.S. Consulate abroad
• Application for adjustment to Lawful Permanent
  Resident (LPR) status within the United States
• LPR's who have been out of the U.S. for more than
  6 months
• Rarely, LPR's may face deportation (removal) if
  they meet an extremely narrow test.
•  

7
Consequences of a Public Charge Determination

• Denial of entry into the United States
• Denial of application for lawful permanent
  residence ("LPR")
• Denial of entry into the U.S. for LPR who has
  traveled abroad for more than 180 days
• In rare cases, removal (deportation) of LPR
•  

8
To Whom is the Public Charge Test Applied ?

•  
• Persons applying to enter the U.S.
• Persons applying for lawful permanent residence
  (LPR)
• LPR's who have traveled outside the U.S. for more
  than 180 days

9
Public Charge does not apply to

• Applicants for Naturalization
• Registry applicants (residing continuously in the
  U.S. since Jan. 1, 1972)
• Special Immigrant Juveniles
• Refugees, persons granted asylum or withholding
  of deportation/removal

10
Public charge does not apply to

• Certain Indo-Chinese, Polish and Hungarian
  parolees applying for adjustment of status
• Amerasian immigrants
• Cubans applying for adjustment of status under
  the Cuban Adjustment Act
• Haitians applying for adjustment of status under
  the Haitian Refugee Immigration Fairness Act
• Lautenberg parolee
• Cubans and Nicaraguans applying for adjustment of
  status under the Nicaraguan Adjustment and
  Central American Relief Act (NACARA)

11
VAWA Petitioners

• Persons who file a self-petition for an
  immigrant visa under the Violence Against Women
  Act are subject to the public charge test at the
  time of their green card interview.
• However, they can use all benefits, including
  cash welfare, without affecting the public charge
  decision.

12
The Public Charge Determination

• It is a "totality of the circumstances" test  
• Health
• Job
• Skills/education
• Income/assets
• Affidavit of support  
• Age
• Family to support
•  

13
Public Benefits

•  
• Current, past or future use of non-cash benefits
  or special purpose cash benefits is not
  considered in making the public charge
  determination
•  

14
Health Care is a Non-Cash Benefit

• Non-Cash Benefits that dont affect the public
  charge decision include
• Medicaid (except long-term care)
• TexCare (State Childrens Health Insurance
  Program)
• Emergency Health Services
• Other health insurance and health services
  including
• - Immunizations
• - Testing and treatment of symptoms of
  communicable diseases
• - Use of health clinics
• - Short-term rehabilitation services (including
  institutionalization)

15
OTHER NON-CASH AND "SPECIAL PURPOSE" CASH BENEFITS

•  
• Job Training Programs
• Transportation vouchers
• In-kind community based programs, services or
  assistance i.e.
• - Soup kitchens - Crisis counseling
• - Short-term shelter
• State and local programs that are similar to
  these federal programs
• Cash payments that are earned do not affect the
  public charge decision
• - Social Security benefits - Government
  pensions
• - Veterans Benefits

16
More Non-Cash Benefits

• Nutrition programs
• - Food Stamps (even if paid in cash) - WIC
• - School meals
• - Other supplementary emergency food
  assistance programs
• Housing Benefits
• One-time Diversion payments under TANF
• Child care services
• Energy assistance, i.e., LIHEAP
• Emergency disaster relief
• Foster care and adoption assistance
• Educational assistance
• - Head Start - Elementary
• - Secondary - Higher Education

17
Benefits that Affect the Public Charge Decision

• Long-term care in nursing home or mental health
  institution.
• Cash welfare programs for income maintenance that
  the immigrant is receiving at the time of
  application for admission or adjustment
• - Supplemental Security Income (SSI)
• - TANF
• - General Relief/General Assistance
• 64 Fed. Reg. at 28690.

18
Special Issues

•  
• Current use of cash welfare by applicant
• It is possible for an immigrant to receive a
  small amount of cash welfare for income support
  and not be determined to be a public charge
  because of other positive factors under the test.
  Guidance 64 Fed. Reg. at 28693.
• Use of cash welfare by family members
• Generally, use of cash welfare by family members,
  i.e., U.S. citizen children, is not to be used to
  determine whether the applicant is a public
  charge, unless the family is relying on cash
  welfare for its sole support. Guidance 64 Fed.
  Reg. at 28691-2.
• Past use of cash welfare by applicant
• Past use of benefits, including cash welfare or
  long-term care, does not necessarily mean that a
  person will become a Public Charge in the future
  but this history is one of the factors that must
  be considered. Guidance, 64 Fed. Reg. at 28690.

19
Sponsorship Issues

• A sponsor cannot count cash assistance as
  income towards required 125 FPL income level.
• A sponsor can receive means-tested benefits,(
  i.e., Medicaid) without being disqualified as
  sponsor.

20
Deportation

•  
• A legal immigrant can be REMOVED for being a
  Public Charge only if all of the following
  conditions have been met
• He/she receives cash welfare or long-term care
  for reasons that existed before entry into the
  U.S. AND
• He/she gets cash welfare or long-term care less
  than 5 years after entry into the U.S. AND
• He/she or the sponsor has a legal obligation to
  repay the government agency that gave the welfare
  benefits AND

21
Deportation (continued)

•  
• A legal immigrant can be REMOVED for being a
  Public Charge only if all of the following
  conditions have been met
• He/she or the sponsor received a notice from the
  agency to repay the debt within 5 years of
  entering the U.S. AND
• He/she or the sponsor refused to repay the debt
  after receiving the notice and the government has
  won a judgment against the immigrant or sponsor
  and enforces the judgment against the immigrant
  or sponsor.
• Notes Most government benefits such as
  Medicaid do not create a public debt. The
  immigrant must be given a chance to prove to the
  INS that he/she became a public charge for
  reasons that happened after entry. With this
  showing, the immigrant cannot be deported.
  Guidance, 64 Fed. Reg. at 28691.

22
Discretionary Remedies

• Immigrants applying for suspension of
  deportation, cancellation of removal and other
  discretionary remedies are not subject to
  public charge determinations. Nevertheless, some
  immigration judges consider their receipt of
  benefits to be a factor in deciding whether to
  approve their applications.
•  

23
Immigrants with HIV

• Persons with HIV who are applying for lawful
  permanent residence or refugee status must also
  overcome the communicable disease ground of
  inadmissibility. Some applicants can obtain a
  waiver of these grounds if they overcome a
  three-part test. Use or potential use of
  government-funded health care (such as Medicaid
  and Refugee Medical Assistance) may be weighed in
  this test.
• Exception refugees with HIV can use these
  benefits without affecting their chances of
  getting an HIV waiver.