Adjustment of Status - - Issues concerning “Public Charge” determinations and “Affidavit of Support” documents -- Attorneys in Silicon Valley, New York, Los Angeles, Chicago, Houston, and Austin

Receipt of Certain Public Benefits will NOT Render Alien a “Public Charge”

Issues concerning “Public Charge” determinations, and obligations associated with “Affidavit of Support” documents.

Many aliens who are interested in entering the United States and/or becoming Legal Permanent Residents fear that if they or their relatives and dependents receive various public benefits from the federal government or state governments, the U.S. Citizenship and Immigration Service (USCIS) or the Department of State (DOS) will decide they are likely to become a “public charge” and deny them a Green Card as a result. According to U.S. Immigration law, a public charge finding may result in denial of an application to adjust to Legal Permanent Resident (LPR) status by the USCIS, denial of an immigrant visa to enter the U.S. by the U.S. Embassies or Consulates of the State Department, or even deportation in very rare circumstances.

This article contains the following information:

A brief history of the “public charge” policy,
Definitions of significant terms used in determining if someone is likely to be deemed a “public charge,”
A list of government benefits that will trigger a “public charge” consideration by the USCIS,
A list of government benefits aliens can receive without becoming subject to a “public charge” consideration,
Discussion of USCIS's “Totality of the Circumstances” rule,
Effect of “Public Charge” on admission and adjustment of status,
Possibility of deportation related to “public charge,”
Repayment of received government benefits,
Receipt of Public Benefits by Spouse or Family Member,
Effect of “Public Charge” designation on various immigration petitions, such as Naturalization,
Summary of Form I-864, Affidavit of Support (the form used to determine if an alien is likely to become a “Public Charge”).

Definition of Public Charge

“Public charge” means an alien who (for deportation purposes) has become or (for admission or adjustment of status purposes) 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.”

This definition is stated in the USCIS's Field Guidance manual (now used by the USCIS). In addition to this, the State Department sent a similar definition of “public charge” to U.S. consulates abroad providing guidance on public charge determinations for admission purposes.

Background

The rules that determine whether an alien is likely to become a “public charge” or not and the ramifications on admissibility and even deportation of such a determination have been part of U.S. immigration law for more than 100 years. 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. An alien is also deportable if he or she has become a public charge within five years after his or her date of entry from causes not shown to have arisen since entry. For deportation purposes, an immigration judge will make the final determination during removal proceedings; fortunately, deportations on public charge grounds have been very rare.

Since the mid-1990's, new immigration and welfare reform laws have generated considerable public confusion and concern about whether receipt of certain federal, state, or local public benefits may render an alien a “Public Charge” and as a result the alien may face adverse immigration consequences. This concern has prompted some aliens, who are eligible to receive such public benefits as disaster relief, treatment of communicable diseases, immunizations, and children's nutrition and health care programs, to be reluctant to accept such benefits. This potentially causes considerable harm to these aliens and the general public. Unfortunately, the fear of being labeled a “Public Charge” and the absence of a clear definition of “Public Charge” undermines Federal Government policies designed to increase access to health insurance and health care.

In order to clarify this issue and thus increase access to health care and other assistance to those eligible, the Clinton Administration published a proposed rule in the Federal Register on May 26, 1999 that describes 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 1999 proposal provided a definition for “public charge” and examples of the categories of public benefits that will not be considered in making a “public charge” consideration. The new rule also described the various issues that must be considered in making a public charge determination. Although never finalized, the 1999 proposal has been incorporated in the USCIS's field manuals and is used by the USCIS to make decisions concerning “public charge” issues.

It has never been the policy of the USCIS that receipt of any publicly funded services or benefits renders an alien a public charge, or indicates that the alien is likely to become a public charge. In fact, there are many federally funded benefits that aliens may receive (and are encouraged to receive, if needed) that will not render them a public charge. The nature of the public program must be considered. For instance, attending public schools, taking advantage of school lunch or other supplemental nutrition programs, or receiving emergency medical care would not make an alien inadmissible as a public charge, despite the use of public funds.

Benefits Subject to Public Charge Consideration

If at the time of application for admission or adjustment an alien is receiving cash public assistance for income maintenance or is institutionalized for long-term care including assistance from the programs listed below, the receipt of such benefits should be taken into account when determining if an alien is likely to become a public charge. However, regulations state that the determination must be made using the totality of the circumstances test (as discussed below), along with the other statutory factors. The following is a list of public benefits that may render an alien a public charge:

Supplemental Security Income (SSI);
Cash assistance from the Temporary Assistance for Needy Families (TANF) program;
State or local cash assistance programs for income maintenance, often called “General Assistance” programs; and
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

Acceptance of these forms of public cash assistance could make a non-citizen a public charge, if all other criteria are met under the totality of circumstances test (as described below in the section “Totality of the circumstances tests.”) Please note that short-term institutionalization for rehabilitation is not subject to public charge consideration.

In addition, please note that not all cash assistance is provided for purposes of income maintenance, and thus not all cash assistance is relevant for public charge purposes. For example, some energy assistance programs provide supplemental benefits through cash payments, in addition to vouchers or in-kind benefits, depending on the locality and the type of fuel needed. Likewise, cash payments could also be provided for childcare assistance. Such supplemental, special-purpose cash benefits should not be considered in public charge determinations because they are not evidence of primary dependence on the government for subsistence.

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 (including FHA loan);
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. However, 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.

Totality of the Circumstances Test

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 regulation requires that USCIS and DOS officials should assess the financial responsibility of the alien by examining the “totality of the alien's circumstances at the time of his or her application” by considering the alien's age, health, family status, assets, resources and financial status, education, and skills, among other factors 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 USCIS 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 one is required -- will determine whether an alien is a public charge, including past or current receipt of public cash benefits for income maintenance.

Deportation

The USCIS 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. The USCIS may initiate removal proceedings only if the benefit-granting agency has:

The legal authority to demand repayment. In other words, the alien or designated relatives or friends must be legally obligated to repay the benefit;
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.

Repayment of Public Benefits

The immigration laws do not stipulate that aliens must repay benefits previously received as a condition of admission or adjustment, nor do they demand proof of repayment as a condition for finding the alien admissible to the United States. Repayment is relevant to the public charge inadmissibility determination only in the circumstance of deportation on public charge grounds (as described above in the section “Deportation.”)

Receipt of Benefits by Children and other Family Members

As a general rule, the receipt of benefits by a member of the applicant's family is not attributable to the applicant for purposes of determining the likelihood that the applicant will become a public charge. If, however, the family is reliant on the benefits as its sole means of support, the applicant may be considered to have received public cash assistance. This determination is to be made on a case-by-case basis and upon consideration of the totality of the applicant's circumstances.

Other Public Charge Clarifications

There is no public charge test for naturalization.

A public charge determination is not a factor in whether a non-citizen can sponsor a relative to come to the United States. If a non-citizen wishes to sponsor a relative to come to the United States, the relative will need to locate a financially sound US Citizen or Legal Permanent Resident to sign a Form I-864 or Form I-134 (Affidavit of Support) in order for the relative to enter the US.

Refugees and asylees remain exempt from public charge determinations for purpose of admission and adjustment of status. Similarly, Amerasian, Cuban, Haitian, and Nicaraguan immigration may be exempt from public charge restrictions in accordance with relevant acts of Congress.

Most Legal Permanent Residents who have been outside the United States for 180 days or less are not applicants for admission and therefore are not subject to inadmissibility.

Affidavit of Support Forms

I-864 or I-134

In any family-based immigration case, a petitioner must complete and submit an Affidavit of Support, Form I-864. This means that petitioners must also file Form I-130, Petition for Alien Relative or Form I-600, Petition to Classify Orphan as Immediate Relative.

In employment-based cases, when an Affidavit of Support is requested, Form I-134 is applicable. The single exception to this rule is if the petitioner is a family member of the beneficiary and owns more than 5% of the business – in that case an I-864 is required.

I-864 and Benefits Counted

The I-864, Affidavit of Support, is a legally enforceable contract between the sponsor and the United States government. The contract exists from the time the immigrant is granted Legal Permanent Resident status for up to ten years, or until the immigrant becomes a citizen, or the immigrant completes forty qualifying quarters, whichever period is shorter. If at any point during the enforceable period, however, the immigrant receives means-tested public benefits, the sponsor can be sued by a Federal, State or local government agency for reimbursement. In contrast, form I-134 is not a contract, and thus the sponsor bears no such obligation as those stated in the I-864.

For an I-864, the sponsor must be a US citizen or national or have legal permanent resident status. Also, the sponsor must be at least 18 years old and reside in the US or in a US territory.

An Affidavit of Support, Form I-864, asks whether the sponsor or a member of the sponsor's household has received means-tested benefits within the past 3 years. The purpose of this question is not to determine whether the sponsor is or is likely to become a public charge, but to ensure that the adjudicating officer has access to all facts that may be relevant in determining whether the 125-percent annual income test is met.

Any cash benefits received by the sponsor cannot be counted toward meeting the 125-percent income threshold. Cash benefits are traditionally defined as federal means-tested public benefits including Food Stamps, Medicaid, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and the State Child Health Insurance Program (CHIP). States and local jurisdictions may also designate certain of their programs as means-tested public benefits.

However, receipt of other means-tested benefits are not disqualifying for sponsorship purposes. Examples of such programs include Emergency Medicaid; short-term, non-cash emergency relief, services provided under the National School Lunch and Child Nutrition Acts;, immunizations and testing and treatment for communicable diseases; student assistance under the Higher Education Act and the Public Health Service Act; certain forms of foster-care or adoption assistance under the Social Security Act; Head Start programs; means-tested programs under the Elementary and Secondary Education Act; and Job Training Partnership Act programs. Public benefit programs are increasingly available to families with incomes above 125 percent of the poverty line.

125-percent Income Threshold

To be qualified as a sponsor of I-864, the sponsor must show that his/her household income is equal to or higher than 125 percent of the U.S. poverty level for his/her household size. The household size includes the sponsor himself/herself, dependents, any relatives living with him/her, and the immigrant(s) he/she is sponsoring.

Consider the example of a sponsor who has a spouse and two children and wants to sponsor his brother and sister-in-law. The total household has six people. According to the 2004 U.S. Poverty Guidelines, the sponsor's total household income must be equal to or higher than $31,512. The sponsor must also include in his household size any immigrants he has previously sponsored. In this example, if the sponsor had previously sponsored his parents, his household size would be eight persons and he would need a household income of $39,462.

If the sponsor is on active duty in the Armed Forces of the United States, and the immigrant he/she is sponsoring is his/her spouse or child, the sponsor's income need only equal 100 percent of the U.S. poverty level for his/her family size.

For further information about 2011 Poverty Guidelines, please click here.

If sponsors cannot meet the minimum income requirement using their earned income, they have various options to claim extra income for immigration purposes:

Cash Value of the Sponsor's Assets

The cash value of the sponsor's assets, such as money in savings accounts, stocks, bonds, and property, can be added to meet the requirements. To determine the amount of assets required to qualify, subtract the sponsor's household income from the 125% of the poverty level for his/her family size. The cash value of his/her assets must be worth five times this difference.

For example:

John wishes to sponsor his parents' immigration. John and his wife's total household income in 2004 was $22,000. They have no other dependents. The total household is four, including John, his wife, John's father and mother. According to the 2004 U.S. Poverty Guidelines, John's total household income must be equal or higher than $27,537. Thus, the difference between John’s actual income and his needed income is $5,537. $5,537 times 5 is equal to $27,685. If John has $27,685 or more of cash value in his assets, he is qualified to sponsor his parents.

Income and assets of members of the sponsor’s household who are related by birth, marriage, or adoption

To count a relative's income for immigration purposes, the sponsor(s) must have listed that relative as a dependent on their most recent federal tax return or they must have lived with that relative for the last 6 months. The joint sponsors must also complete Form I-864A, Contract between Sponsor and Household Member.

In the above example, if John's personal income is $20,000 and his wife's income is $8,000. Their total household income is $28,000, which meets the 125% of the poverty level for his family size of four - $27,537.

Assets of the beneficiary immigrant

The sponsor(s) may also include the value of the income and assets of the immigrant(s) whom they are sponsoring. The immigrant does not need to complete Form I-864A unless he or she has accompanying family members.

In the above example, if John and his wife's household income is $20,000 and John's parents' income is $8,000, their total household income should be $28,000, which meets the 125% of the poverty level for his family size of four - $27,537.

Totality Test in Reviewing I-864

Immigration law requests a totality test in reviewing I-864, although the I-864 form only requests information regarding the sponsor's income and assets. According to law, factors such as age, health, family status, assets, resources and financial status, education and skills must be examined.

For example:

In an I-130 immigration petition, where the husband, a US citizen, is sponsoring his alien wife; Both husband and wife are attending medical school and their current combined income is barely sufficient to meet the Federal Poverty Lines for their household of two.

Factors such as employability after their graduation, and education, skills, or age are essential in the totality test of immigration officer in order to make a determination on the likelihood that the alien wife will become a public charge.

If you have any “Public Charge” or “Affidavit of Support”-related questions, please feel free to call us at (713) 771-8433 or visit us at one of our seven locations. You can also contact us conveniently online by email us at info@hooyou.com. Our attorneys will use their experience, expertise, and teamwork to ensure highest quality of service.

Sources:

Electronic Code of Federal Regulations: 8 CFR §§ 213A.1 and 213A.2(c)
Immigration and Nationality Act: INA 213A(f)
DOS Foreign Affairs Manual: 9 FAM 40.41 N2-N2.2, N4

(Updated 10/11/2012 by AD)

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