New U.S. Immigration Public Charge Provisions – The Dawn of a New Era – "Do Not Give Me Your Tired, Your Poor ….”

By: Bernard P. Wolfsdorf, ABIL Lawyer and Senior Associate Robert J. Blanco
Wolfsdorf Immigration Blog

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), as amended, an applicant is inadmissible if “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”  USCIS guidance from 2011 defined a public charge as someone 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.”

Under this narrow definition, many forms of public benefits would not render someone a public charge.  USCIS specifically stated that “non-cash benefits and special-purpose cash benefits not intended for income maintenance are not subject to public charge considerations” and proceeded to list fourteen different benefits not subject to a public charge consideration.

However, an immigration officer will now look at many factors and base this determination on the totality of circumstances.

Consistent with recent immigration restrictions and policy changes, it appears that USCIS intends to broaden its interpretation of public charge determinations.

The Department of Homeland Security recently published proposed rulemaking indicating changes that could be implemented shortly.  According to the draft rule, the following benefits will now be considered for purposes of public charge inadmissibility:

1. Supplemental Security Income (SSI);
2. Temporary Assistance to Needy Families (TANF);
3. State or local cash benefit programs for income maintenance (often called State “General Assistance,” but which may exist under other names);
4. Any other federal public benefits for purposes of maintaining the applicant’s income, such as public cash assistance for income maintenance;
5. Certain Benefits under the Medicaid Program;
6. Government-provided subsidies for premium payments under the Patient Protection and Affordable Care Act or other government subsidized medical insurance programs;
7. Supplemental Nutrition Assistance Program (SNAP) (formerly called “Food Stamps”);
8. Special Supplemental Nutrition Program for Women, Infants, and Children (WIC);
9. State Children’s Health Insurance Program (CHIP) (formerly called “SCRIP”);
10. Transportation vouchers or other non-cash transportation services;
11. Housing assistance under the McKinney-Vento Homeless Assistance Act, as amended, or the Housing Choice Voucher Program (section 8), U.S. Housing Act of 1937, as amended;
12. Energy benefits such as the Low-Income Home Energy Assistance Program (LIHEAP);
13. Institutionalization for both long-term and short-term care at government expense;
14. Certain educational benefits, including, but not limited to, benefits under the Head Start Act, as amended; and
15. Any other Federal, State, or local public benefit program, except for those benefits described in § 212.24.

The draft rule only specifies two types of public benefits that will not be considered for purposes of public charge inadmissibility – 1) emergency or disaster relief and 2) educational and child care block grants.

Public charge inadmissibility will consider many factors, including the foreign national’s age, health, family status, assets, and education and skills.  Benefits given to a foreign national’s dependent family members, including U.S. citizen children can also cause a public charge finding.  Heavily weighted factors include whether the foreign national is authorized to work but is unemployed, has previously received public benefits, or has a costly medical condition, among others.

Notably, these changes will only effect public benefits received on or after the effective date of the final rule, so benefits received previously should be analyzed under the current public charge guidance.  These rules are not final and could change before they are implemented.  However, it appears that public charge inadmissibility will be a point of emphasis going forward.  Foreign nationals who have received any kind of public benefit should consult with an experienced immigration attorney to carefully consider whether a public charge ground of inadmissibility is likely.