[Federal Register Volume 64, Number 101 (Wednesday, May 26, 1999)]
[Notices]
[Pages 28689-28693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13202]
Federal Register / Vol. 64, No. 101 / Wednesday, March 26, 1999 /
Notices
[[Page 28689]]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[INS No. 1988-99]
Field Guidance on Deportability and Inadmissibility on Public
Charge Grounds
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Notice.
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SUMMARY: The Department of Justice (Department) is publishing a
proposed rule in this issue of the Federal Register which proposes to
establish clear standards governing a determination that an alien is
inadmissible or ineligible to adjust status, or has become deportable,
on public charge grounds.
Before the proposed rule becomes final, the Immigration and
Naturalization Service (Service) is publishing its field guidance on
public charge issues as an attachment to this notice. This is necessary
to help alleviate public confusion over the meaning of the term
``public charge'' in immigration law and its relationship to the
receipt of Federal, State, and local public benefits. This field
guidance will also provide aliens with better guidance as to the types
of public benefits that will and will not be considered in public
charge determinations.
DATES: This notice and field guidance are effective May 21, 1999.
FOR FURTHER INFORMATION CONTACT: Sophia Cox or Kevin Cummings,
Immigration and Naturalization Service, 525 I Street, NW, Office of
Adjudications, Washington, DC 20536, telephone (202) 514-4754.
SUPPLEMENTARY INFORMATION: Recent immigration and welfare reform laws
have generated considerable public confusion about the relationship
between the receipt of Federal, State, and local public benefits and
the meaning of ``public charge'' in immigration statutes governing
deportation, admissibility, and adjustment of status. The Department
decided to publish a proposed rule defining ``public charge'' in order
to reduce the negative public health consequences generated by the
existing confusion and to provide aliens with better guidance as to the
types of public benefits that will and will not be considered in public
charge determinations.
In addition, the Service has issued guidance to its field officers
on a variety of issues related to public charge determinations. That
field guidance is included as an attachment to this notice to provide
additional information to the public on the Service's implementation of
the public charge provisions of the immigration laws.
Dated: May 20, 1999.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
U.S. Department of Justice, Immigration and Naturalization Service
May 20, 1999.
Memorandum for All Regional Directors
From: Michael A. Pearson, Executive Associate Commissioner, Office
of Field Operations
Subject: Public Charge: INA Sections 212(a)(4) and 237(a)(5)
This memorandum provides guidance concerning the public charge
ground of inadmissibility, section 212(a)(4) of the Immigration and
Nationality Act (INA), and the related deportation charge under
section 237(a)(5) of the INA. It also discusses the impact of these
subsections of the new enforceable Affidavit of Support prescribed
by section 213A of the INA, established by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and welfare
reform laws.\1\
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\1\ The Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Pub. L. 104-193, as amended by the
Balanced Budget Act of 1997, Pub. L. 105-33; the Agricultural
Research, Extension, and Education Reform Act of 1998, Pub. L. 105-
185; and the Noncitizen Technical Amendments Act of 1998, Pub. L.
105-306.
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IIRIRA and the recent welfare reform laws have sparked public
confusion about the relationship between the receipt of federal,
state, local public benefits and the meaning of ``public charge''
under the immigration laws. Accordingly, the Service is taking two
steps to ensure the accurate and uniform application of law and
policy in this area. First, the Service is issuing this memorandum
which both summarizes longstanding law with respect to public charge
and provides new guidance on public charge determinations in light
of the recent changes in law. In addition, the Service is publishing
a proposed rule for notice and comment that will for the first time
define ``public charge'' and discuss evidence relevant to public
charge determinations. Although the definition of public charge is
the same for both admission/adjustment and deportation, the
standards of public charge is the same for both admission/adjustment
and deportation, the standards applied to public charge
adjudications in each context are significantly different and are
addressed separately in this memorandum. After discussing the
definition and standards for public charge determinations, the
memorandum goes on to discuss exceptions from public charge
determinations and particular types of benefits that may and may not
be considered for public charge purposes, in addition to other
issues.
I. Definition of ``Public Charge''
The Service is publishing a rule for notice and comment that
defines ``public charge'' or purposes of both admission/adjustment
and deportation. That rule proposes that ``public charge'' means an
alien who has become (for deportation purposes) or who is likely to
become (for admission/adjustment purposes) ``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.''
Institutionalization for short periods of rehabilitation does not
constitute such primary dependence.
The Service is adopting this definition immediately, while
allowing the public an opportunity to comment on the proposed rule.
Accordingly, officers should not initiate or pursue public charge
deportation cases against aliens who have not received public cash
benefits for income maintenance or who have not been
institutionalized for long-term care. Similarly, officers should not
place any weight on the receipt of non-cash public benefits (other
than institutionalization) or the receipt of cash benefits for
purposes other than for income maintenance with respect to
determinations of admissibility or eligibility for adjustment on
public charge grounds. Supplementary guidance will be issued, as
necessary, in conjunction with publication of a final rule.
See section 6, below, for a more detailed discussion of
particular types of benefits that may and may not be considered for
public charge purposes.
2. Admission and Adjustment of Status
Under INA section 212(a)(4), an alien seeking admission to the
United States or seeking to adjust status to that of an alien
lawfully admitted for permanent residence is inadmissible if the
alien, ``at the time of application for admission or adjustment of
status, is likely at any time to become a public charge.'' \2\
IIRIRA amended section 212(a)(4) of the INA to codify the factors
relevant to a public charge determination. Officers must consider,
at a minimum, the alien's age, health, family status, assets,
resources, and financial status, and education and skills when
making a public charge inadmissibility determination. Every denial
order based on public charge must reflect consideration of each of
these factors and specifically articulate the reasons for the
officer's determination.
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\2\ See Section 4 below on categories of aliens who are not
subject to public charge determinations.
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The most significant change to section 212(a)(4) under IIRIRA is
the creation of a new affidavit of support (AOS), which, coupled
with new section 213A, imposes on the sponsor a legally enforceable
support obligation. The law requires that sponsors demonstrate that
they are able to maintain the sponsored alien at an annual income of
not less than 125 percent of the federal poverty level. The AOS
requirement applies to all immediate relatives (including orphans),
family-based immigrants, and those employment-based immigrants who
will work for a relative or for a firm in which a U.S. citizen or
lawful permanent resident (LDR) relative holds a 5 percent or more
ownership interest. Immigrants seeking
[[Page 28690]]
admission or adjustment of status in these categories are
inadmissible under subparagraphs (C) and (D) of the modified section
212(a)(4), respectively, unless an appropriate sponsor has completed
and filed a new AOS if the application for an immigrant visa or
adjustment of status was filed on or after December 19, 1997. Note
that this requirement applies to these aliens even if, under the
factors codified in section 212(a)(4)(B), the adjudicator would
ordinarily find that the alien is not likely to become a public
charge. The only exceptions from this requirement are for qualified
battered spouses and children (and their eligible family members)
and for qualified widow(er)s of citizens, if these aliens have filed
visa petitions on their own behalf. Where such an AOS has been filed
on an alien's behalf, it should be considered along with the
statutory factors in the public charge determination.
The standard for adjudicating inadmissibility under section
212(a)(4) has been developed in several Service, BIA, and Attorney
General decisions and has been codified in the Service regulations
implementing the legalization provisions of the Immigration Reform
and Control Act of 1986. These decisions and regulations, and
section 212(a)(4) itself, create a ``totality of the circumstances''
test.
In determining whether an alien is likely to become a public
charge, Service officers 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 * * * The
existence or absence of a particular factor should never be the sole
criterion for determining if an alien is likely to become a public
charge. The determination of financial responsibility should be a
prospective evaluation based on the alien's age, health, family
status, assets, resources and financial status, education, and
skills, among other factors.\3\ An alien may be considered likely to
become a public charge even if there is no legal obligation to
reimburse the benefit-granting agency for the benefits or services
received, in contrast to the standards for deportation, discussed
below.\4\
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\3\ 8 C.F.R. Sec. 245a.4(b)(11)(iv)(B), and see INA
Sec. 212(a)(4)(B). The federal courts have also endorsed this
``totality of the circumstances'' test. See, e.g., Zambrano v. INS,
972 F.2d 1122 (9th Cir. 1992), judgment vacated on other grounds,
509 U.S. 918 (1993).
\4\ Matter of Harutunian, 14 I. & N. Dec. 583 (BIA 1974)
(interpreting Sec. 212(a)(15), recodified as Sec. 212(a)(4)).
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In addition, the Attorney General has ruled that ``[s]ome
specific circumstances, such as mental or physical disability,
advanced age, or other fact reasonably tending to show that the
burden of supporting the alien is likely to be cast on the public,
must be present. A healthy person in the prime of life cannot
ordinarily be considered likely to become a public charge,
especially where he has friends or relatives in the United States
who have indicated their ability and willingness to come to his
assistance in case of an emergency.'' \5\ Under the new AOS rules,
all family-based immigrants (and some employment-based immigrants)
will have a sponsor who has indicated an ability and willingness to
come to the immigrant's assistance.
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\5\ Matter of Martinez-Lopez, 10 I&N 409, 421-422 (AG, Jan. 6,
1964).
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Current Receipt of Cash Benefits for Income Maintenance and Current
Institutionalization
If at the time of application for admission or adjustment an
alien is receiving a cash public assistance for income maintenance
or is institutionalized for long-term care (as discussed in section
6, below), that benefit should be taken into account under the
totality of the circumstances test, along with the other statutory
factors under section 212(a)(4)(B)(i) and any AOS. It is possible,
for example, that an alien receiving a small amount of cash for
income maintenance purposes could be determined not likely to become
a public charge due to other positive factors under the totality of
the circumstances test. Aliens should not be asked to repay the cost
of any benefits received in order to qualify for admission or
adjustment.
Current receipt of non-cash benefits or the receipt of special-
purpose cash benefits not for income maintenance should not be taken
into account under the totality of the circumstances test in
determining whether the alien is likely to become a public charge.
Past Receipt of Cash Benefits for Income Maintenance and Past
Institutionalization
Past receipt of cash income-maintenance benefits does not
automatically make an alien inadmissible as likely to become a
public charge, nor does past institutionalization for long-term care
at government expense. Rather this history would be one of many
factors to be considered in applying the totality of the
circumstances test. In the case of an alien who has received cash
income-maintenance benefits in the past or who has been
institutionalized for long-term care at government expense, a
Service officer determining admissibility should assess the totality
of the alien's circumstances at the time of the application for
admission or adjustment and make a forward-looking determination
regarding the likelihood that the alien will become a public charge
after admission or adjustment. The longer ago an alien received such
cash benefits or was institutionalized, the less weight these
factors will have as a predictor of future receipt. Also, the
``length of time an applicant has received public cash assistance is
a significant factor.'' \6\ The longer an alien has received cash
income-maintenance benefits in the past and the greater the amount
of benefits, the stronger the implication that the alien is likely
to become a public charge. The negative implication of past receipt
of such benefits or past institutionization, however, may be
overcome by positive factors in the alien's case demonstrating an
ability to be self-supporting. For instance, a work-authorized alien
who has current full-time employment or an AOS should be found
admissible despite past receipt of cash public benefits, unless
there are other adverse factors in the case.
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\6\ 8 CFR Sec. 245a.2(k)(4).
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Past receipt of non-cash benefits (other than
institutionalization for long-term care) should not be taken into
account under the totality of the circumstances test. Similarly,
past receipt of special-purpose cash benefits not for income
maintenance should be not taken into account.
Repayment of Public Benefits
IIRIRA did not create any requirement that aliens repay benefits
received in the past in order to avoid being found inadmissible on
public charge grounds, nor has such a requirement existed in the
past. Accordingly, officers should not instruct or suggest that
aliens must repay benefits previously received as a condition of
admission or adjustment, and they should not request proof of
repayment as a condition for finding the alien admissible to the
United States. (See INS Memorandum. ``Public Charge. INA Sections
212(a)(4) and 237(a)(5)--Duration of Departure for LPRs and
Repayment of Public Benefits,'' dated December 16, 1997, for further
discussion.)
Repayment is relevant to the public charge inadmissibility
determination only in very limited circumstances. If at the time of
application for admission or adjustment of status the alien is
deportable on public charge grounds under section 237(a)(5) of the
INA due to an outstanding public debt for a cash benefit or the
costs of institutionalization, then the alien is inadmissible. Only
a debt that satisfies the three-part test under section 237(a)(5),
described below, will render an alien deportable as a public charge
and therefore ineligible for admission or adjustment. If the debt is
paid, then the alien will no longer be inadmissible based on the
debt, and the usual totality of the circumstances test would apply.
While the Service may not demand
[[Page 28691]]
that an alien repay a public debt which meets the three-part test,
it may inform an alien that if the alien does not repay the debt, he
or she will continue to be inadmissible to the United States.
Adjudicators should make sure also to inform aliens that even if
they pay the debt, they may still be determined to be inadmissible
as an alien likely to become a public charge under the totality of
the circumstances test.
If an INS officer finds evidence of possible benefit fraud in
the course of performing his or her immigration duties, that
information should be forwarded through official channels to the
appropriate benefit-granting agency for possible investigation and
enforcement action. In such cases, absent a determination of fraud
by the benefit-granting agency, immigration benefits to which the
alien is otherwise entitled should not be withheld or denied.
3. Public Charge Determination--Deportation
The determination of whether an alien is subject to removal
under section 237(a)(5) is quite different from the determination of
whether an alien is inadmissible under section 212(a)(4), although
in both contexts the focus is on the receipt of cash benefits for
income maintenance purposes. Section 237(a)(5) of the INA states
that ``[a]ny alien who, within 5 years after the date of entry, has
become a public charge from causes not affirmatively shown to have
arisen since entry is deportable.'' This section requires a two-step
determination. First, the Service must determine whether the alien
has become a public charge within 5 years after the date of
entry.\7\ Second, if the alien has become a public charge, then the
Service must determine whether the alien has demonstrated that the
circumstances that caused the alien to become a public charge arose
after the alien's entry into the United States. An alien who can
make such a showing is not removable under section 237(a)(5).
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\7\ The 5-year period states again each time an alien enters the
United States after a departure, except for LPRs who are not
applicants for admission unless they meet the terms of section
101(a)(13)(C).
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We respect to whether an alien has become a public charge, the
Attorney General has determined that the mere receipt of a public
benefit by an alien does not make an alien a public charge for
purposes of deportation under section 237(a)(5). Rather, in Matter
of B, 3 I. & N. Dec. 323 (BIA and AG 1948),\8\ the Attorney General
established a strict three-part test to determine if an alien has
become a public charge. In order for an alien to become a public
charge under section 237(a)(5), the following 3 requirements must be
met:
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\8\ While this decision concerned the public charge provision of
the 1917 Act, the test established continues to be valid under
current law, which is substantially the same as the 1917 law. See
Matter of L. 6 I. & N. Dec. 349 (BIA 1954), and Matter of Harutunian
14 I. & N. Dec. 583 (BIA 1974).
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(1) The state or other government entity that provides the
benefit must, by law, impose a charge or fee for the services
rendered to the alien. In other words, the alien or designated
relatives or friends must be legally obligated to repay the benefit-
granting agency for the benefits or services provided, if there is
no reimbursement requirement under law, the alien cannot be said to
be a public charge.
(2) The responsible benefit-granting agency officials must make
a demand for payment for the benefit or services from the alien or
other persons legally responsible for the debt under federal or
state law (e.g., the alien's sponsor).
(3) The alien and other persons legally responsible for the debt
fail to repay after a demand has been made.
The demand for repayment must be made within 5 years of an
alien's entry in order to render the alien deportable as a public
charge.\9\ In addition, the Service has determined that, in order
for an alien to become deportable as a public charge as a result of
the failure of the sponsor to repay the agency, the benefit-granting
agency must take all available actions to collect from the sponsor.
This includes filing an action in the appropriate court and taking
all steps available under law to enforce a final judgment against
the sponsor or other obligated party.
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\9\ Matter of L, 6 I. & N. Dec. 349 (BIA 1954).
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Deportations based on public charge grounds have been rare, and
the new immigration and welfare laws are not likely to change this.
First, for aliens who are not sponsored under the new AOS, it is
unlikely that there will be a legal obligation to repay public
benefits or that the benefit-granting agency will make a demand for
repayment. Thus, just as in the past, the first two prongs of the
Matter of B test generally will not be satisfied. Only aliens who
apply for immigrant visas or adjustment of status on or after
December 19, 1997, may be sponsored under the new, enforceable AOS,
which could satisfy the standards for deportation under Matter B.
However, under the new welfare reform laws, these same aliens will
generally be barred from receiving federal means-tested public
benefits for the first 5 years after admission or adjustment--the
critical period for purposes of deportability.
In addition, under the ``deeming'' rules, and the sponsor's
spouse's income and resources will be attributed to the alien in
assessing his or her eligibility to receive a means-tested benefit,
which would normally raise the alien's income over the benefit
eligibility threshold. Only if an immigrant receives a cash benefit
for income-maintenance within 5 years of entry or is
institutionalized for long-term care (despite the eligibility
limitations), there is a demand for repayment by the benefit-
granting agency, and the sponsor or other responsible party fails to
repay, can the immigrant become deportable as a public charge.
However, even in this case, the alien must be given an opportunity
to prove that he or she became a public charge for causes that arose
after entry. If an alien can make such a showing, he or she will not
be deportable as a public charge. Thus, the Service is unlikely to
see a significant increase in cases of deportability on public
charge grounds.
4. Exceptions From Public Charge Determinations
Under the new laws, refugees and asylees remain exempt from
public charge determinations for purposes of admission and
adjustment of status pursuant to sections 207, 208, and 209 of the
INA. Similarly, Amerasian immigrants are exempt from the public
charge ground of inadmissibility for their initial admission.\10\ In
addition, various statutes contain exceptions to the public charge
ground of inadmissibility for aliens eligible for benefits under
their provisions, including the Cuban Adjustment Act (CAA), the
Nigaraguan Adjustment and Central American Relief Act (NACARA), and
the Haitian Refugee Immigration Fairness Act (HRIFA).\11\ These laws
provide avenues of adjustment for certain aliens--including Cuban/
Haitian entrants,\12\ who remain eligible for many public benefits
under welfare reform--without subjecting them to screening as
potential public charges.
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\10\ Amerasian immigrants are defined in section 584 of the
Foreign Operations, Export Financing, and Related Programs
Appropriations Act of 1988.
\11\ See Matter of Mesa, 12 I. & N. Dec. (Dep. Assoc. Comm.
1967) (public charge exception under the CAA); NACARA, Pub. L. 105-
100, section 202(a); HRIFA, Pub. L. 105-277, Title IX, section 902.
\12\ Cuban/Haitian entrants are defined in section 501(c)(e) of
the Refugee Education Assistance Act of 1980.
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Most LPRs who have been outside the United States for 180 days
or less are not applicants for admission and therefore are not
subject to the grounds of inadmissibility, pursuant to section
101(a)(13)(C) of the INA.\13\ Accordingly, absent an indication that
they may be applicants for admission, such LPRs should not routinely
be questioned on issues related to the likelihood that they will
become a public charge.
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\13\ Section 101(a)(13)(C) provides that an LPR seeking
admission to the U.S. is not an applicant for admission unless the
alien: (i) has abandoned or relinquished that status; (ii) has been
absent for more than 180 days; (iii) has engaged in illegal activity
after leaving the U.S.; (iv) left the U.S. while in removal
proceedings; (v) has committed certain offenses in the U.S.; or (vi)
is attempting to enter other than at a port of entry or has not been
admitted to the U.S. after inspection and authorization.
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Under section 249 of the INA, which allows aliens who have been
in the United States since January 1, 1972, to ``register'' as LPRs,
public charge is not a factor in determining eligibility. Receipt of
public benefits is not an adverse factor in meeting the ``good moral
character'' requirement for registry, absent evidence that an
applicant procured or attempted to procure such benefits through
fraud or misrepresentation.
5. Receipt of Benefits by Children and Other Family Members
The Service has addressed the issue of receipt of benefits by
children and other family members in a number of memoranda on the
issue of public charge for aliens applying for legalization under
section 245A of the INA. The Service's approach to the receipt of
benefits by family members in the legalization context has been
upheld in federal court and should govern the question for general
public charge determinations as
[[Page 28692]]
well.\14\ The rule is well summarized in an April 21, 1988,
memorandum from the Associate Commissioner for Examinations to the
Regional Commissioners.
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\14\ See Perales v. Reno, 48 F.3d 1305 (2d Cir. 1995).
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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.
Although this memorandum specifically addressed the receipt of
cash assistance under the former Aid to Families with Dependent
Children (AFDC) program, the rule is applicable generally to other
cash benefit programs that may give rise to public charge
determinations (See section 6.A below.) Accordingly, 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.
6. Benefits That May and May Not Be Considered for Public Charge
Purposes
The term ``public charge'' has not been defined in law or
regulation and, in the past, the Service has not provided
comprehensive guidance on all kinds of benefits that could cause an
alien to be considered a public charge. In light of the new laws and
the complexity of the federal, state, and local public benefits
system, this issue now requires that the Service adopt uniform
standards. Accordingly, the Service is publishing a proposed rule
for notice and comment, as noted above. The proposed standards take
into account the law and public policy decisions concerning alien
eligibility for public benefits and public health considerations, as
well as past practice by the Service and the Department of State.
It has never been Service policy that any receipt of services or
benefits paid for in whole or in part from public funds renders an
alien a public charge, or indicates that the alien is likely to
become 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.
While the Service has not previously issued guidance on a program-
by-program basis, the Department of State did codify its policy in
the Foreign Affairs Manual (FAM), excluding Food Stamps from
consideration for public charge purposes because of its
``supplemental'' nature.\15\ The Service is now taking a similar
approach by adopting a definition of public charge that focuses on
whether the alien is or is likely to become primarily dependent on
the government for subsistence. After extensive consultation with
benefit-granting agencies, the Service has determined that the best
evidence of whether an alien is primarily dependent on the
government for subsistence is either (i) the receipt of public cash
assistance for income maintenance, or (ii) institutionalization for
long-term care at government expense.
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\15\ 9 FAM Sec. 40.41 n.9.1
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The Service is proposing this definition by regulation and
adopting it on an interim basis for several reasons. First,
confusion about the relationship between the receipt of public
benefits and the concept of ``public charge'' has deterred eligible
aliens and their families, including U.S. citizen children, from
seeking important health and nutrition benefits that they are
legally entitled to receive. This reluctance to access benefits has
an adverse impact not just on the potential recipients, but on
public health and the general welfare. Second, non-cash benefits
(other than institutionalization for long-term care) are by their
nature supplemental and do not, alone or in combination, provide
sufficient resources to support an individual or family. In addition
to receiving non-cash benefits, an alien would have to have either
additional income--such as wages, savings, or earned retirement
benefits--or public cash assistance. Thus, by focusing on cash
assistance for income maintenance, the Service can identify those
who are primarily dependent on the government for subsistence
without inhibiting access to non-cash benefits that serve important
public interests. Finally, certain federal, state, and local
benefits are increasingly being made available to families with
incomes far above the poverty level, reflecting broad public policy
decisions about improving general public health and nutrition,
promoting education, and assisting working-poor families in the
process of becoming self-sufficient. Thus, participation in such
non-cash programs is not evidence of poverty or dependence.
In adopting this new definition, the Service does not expect to
substantially change the number of aliens who will be found
deportable or inadmissible as public charges. First, under the
stricter eligibility rules of the welfare reform laws, many legal
aliens are no longer eligible to receive certain types of public
benefits, so they run no risk of becoming public charges by virtue
of receiving such benefits. Many of those who remain eligible for
federal, state, and local public benefits are LPRs, refugees, and
asylees, who are unlikely to face public charges screening in any
case in light of the section 101(a)(13)C) and the statutory
exceptions.\16\ Further, in light of the Matter of B test,
deportations on public charge grounds have been rare and are
expected to remain so. With respect to admissibility, the new AOS
has already raised the threshold for many families to demonstrate
that a sponsored alien is not likely to become a public charge. In
addition, the statutory factors under section 212(a)(4)(B) continue
to apply. This, while the Service will not take an alien's past or
current receipt of non-cash benefits such as medical assistance into
account for public charge purposes, the alien's age, health, and
resources must be considered (along with the other statutory
factors) in determining whether he or she is likely to become
primarily dependent on the government for subsistence in the future.
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\16\ See section 4, above, for a discussion of public charge
exceptions.
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The rules governing alien eligibility for federal, state, and
local public benefits are complex and subject to change, including
significant state-by-state variations. INS officers are not expected
to know the substantive eligibility rules for different public
benefit programs. Rather, this guidance and the proposed rule are
intended to make public charge determinations simpler and more
uniform, while simultaneously providing greater predictability to
the public.
A. Benefits That May Be Considered for Public Charge Purposes
Cash assistance for income maintenance and institutionalization
for long-term care at government expense may be considered for
public charge purposes. Programs that provide such benefits include:
1. Supplemental Security Income (SSI) under Title XVI of Social
Security Act;
2. Temporary Assistance for Needy Families (TANF) cash
assistance (part A of Title IV of the Social Security Act--the
successor to the AFDC program);\17\
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\17\ States have flexibility in administering the TANF program
and may choose to provide non-cash assistance such as subsidized
child care or transportation vouchers in addition to cash
assistance. Such non-cash benefits should not be considered for
public charge purposes. States may also provide non-recurrent cash
payments for specific crisis situations under TANF. Such payments
should not be considered for public charge purposes since they are
not cash for income maintenance.
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3. State and local cash assistance programs that provide
benefits for income maintenance (often called ``General Assistance''
programs); and
4. Programs (including Medicaid) supporting aliens who are
institutionalized for long-term care e.g., in a nursing home or
mental health institution).\18\
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\18\ Costs for imprisonments for conviction of a crime are not a
basis for a public charge determination.
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Past or current receipt of such cash benefits does not lead to a
per se determination that an alien is either inadmissible or
deportable as a public charge. Rather, such benefits should be taken
into account under the totality of the circumstances test for
purposes of admission/adjustment and should be considered for
deportation purposes under the standards of section 237(a)(5) and
Matter of B.
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
[[Page 28693]]
type of fuel needed. Likewise, cash payments could also be provided
for child care 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.
B. Benefits That May Not Be Considered for Public Charge Purposes
Non-cash benefits (other than institutionalization for long-term
care) should not be taken into account in making public charge
determinations, nor should special-purpose cash assistance that is
not intended for income maintenance. Therefore, past, current, or
future receipt of these benefits should not be considered in
deterining whether an alien is or is likely to become a public
charge. Further, an alien need not repay benefits already received
or withdraw form a benefit program in order to be eligible for
admission or adjustment of status.
It is not possible to list all the supplemental non-cash
benefits or special-purpose cash benefits that an alien may receive
that should not be considered for public charge purposes, but common
examples include:
1. Medicaid and other health insurance and health services
(including public assistance for immunizations and for testing and
treatment of symptoms of communicable diseases; use of health
clinics, short-term rehabilitation services, and emergency medical
services) other than support for long-term institutional care,\19\
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\19\ The Service's decision not to consider Medicaid, CHIP, and
Food Stamps for public charge purposes does not affect the authority
of benefit granting agencies to seek repayment for benefits received
by an alien from the alien's sponsor under the new AOS.
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2. Children's Health Insurance Program (CHIP);
3. Nutrition programs, including Food Stamps, the Special
Supplemental Nutrition Program for Women, Infants and Children
(WIC), the National School Lunch and School Breakfast Program, and
other supplementary and emergency food assistance programs;
4. Housing benefits;
5. Child care services;
6. Energy assistance, such as the Low Income Home Energy
Assistance Program (LIHEAP);
7. Emergency disaster relief;
8. Foster care and adoption assistance;
9. Educational assistance, including benefits under the Head
Start Act and aid for elementary, secondary, or higher education;
10. Job training programs; and
11. In-kind, community-based programs, services, or assistance
(such as soup kitchens, crisis counseling and intervention, and
short-term shelter).
State and local programs that are similar to the federal
programs listed above should also be excluded from consideration for
public charge purposes. Note that states may adopt different names
for the same or similar publicly funded programs. In California, for
example, Medicaid is called ``Medi-Cal'' and CHIP is called
``Healthy Families.'' It is the underlying nature of the program,
not the name adopted in a particular state, that determines whether
or not it should be considered for public charge purposes.
In addition, and consistent with existing Service practice, cash
payments that have been earned, such as Title II Social Security
benefits, government pensions, and veterans' benefits, among other
forms of earned benefits, do not support a public charge
determination.
7. Affidavit of Support
The new AOS form, 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, but receipt of other means-tested benefits, such as
Medicaid, is not disqualifying for sponsorship purposes. As noted
above, public benefit programs are increasingly available to
families with incomes above 125 percent of the poverty line.
The regulations implementing the new AOS requirement are found
at 8 CFR part 213a. Separate guidance has been issued on
adjudicating applications including an AOS.
Continued Use of Form I-134
The use of the new AOS (Form I-864) is mandatory for those
categories of immigrants listed in section 212(a)(4)(C) and (D), and
a Service officer may not accept a Form I-134 in place of the new
AOS for these immigrants if the application was filed on or after
December 19, 1997. In those cases not governed by sections
212(a)(4)(C) and (D) and 213A (e.g., parolees, nonimmigrants, or
diversity immigrants) in which the Service has traditionally
accepted Form I-134, Service officers may continue to do so on a
discretionary basis. Use of Form I-361 will continue in cases
involving Amerasians under Public Law 97-361.
8. Naturalization
There is no public charge test for purposes of naturalization.
There are two narrow circumstances under which the public charge
issue can arise in a naturalization case. First, the alien's
admission for permanent residence may not have been ``lawful''
pursuant to section 318 because, at the time of admission or
adjustment, the alien was subject to exclusion as an alien likely to
become a public charge. This would generally occur only if the
Service can show that the alien withheld or misrepresented material
facts relating to the public charge issue at the time of admission
or adjustment. Secondly, the alien's initial admission may have been
lawful, but later the alien became deportable as a public charge,
under the test described in section 3, above. This would not be a
bar to naturalization unless the Service actually instituted
deportation proceedings against the alien. As a practical matter,
neither of these situations is likely to occur.
The Service has no authority to make the repayment of public
assistance a condition for granting naturalization, and officers
should not request proof of repayment from applicants in connection
with a naturalization adjudication.
9. Public Charge Bonds
Section 213 of the INA, Admission of Certain Aliens on Giving
Bond, was amended by IIRIRA only by including a parenthetical
reference to the new AOS prescribed in INA section 213A. Where
appropriate, officers may use the public charge bond option pursuant
to section 213 as has been done in the past.
10. Points of Contact
Questions concerning this memorandum should be referred to
Sophia Cox or Kevin Cummings, Headquarters Office of Adjudications,
at 202-514-4754, through appropriate channels.
[FR Doc. 99-13202 Filed 5-25-99; 8:45 am]
BILLING CODE 4410-10-M