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State Letter #05-02

Public Charge and ORR Populations

Published: January 27, 2005
Types:
State Letter
Tags:
eligibility, public charge

TO: STATE REFUGEE COORDINATORS
NATIONAL VOLUNTARY AGENCIES
OTHER INTERESTED PARTIES

FROM: Nguyen Van Hanh, Ph.D.
Director
Office of Refugee Resettlement

SUBJECT: Public Charge and ORR Populations

Purpose of this letter:

This State Letter provides basic information about "public charge" issues, which are aspects of immigration law under the jurisdiction of the Department of Homeland Security (DHS). ORR is releasing this State Letter in an effort to alleviate some of the concerns and lessen the confusion surrounding the issue of "public charge" and its effect on ORR populations. The former Immigration and Naturalization Service (INS), and now DHS, have attempted to inform individuals and benefit-granting agencies of the current "public charge" policy. Unfortunately, many individuals and families served by ORR have elected not to seek benefits and services they are entitled to receive, even though it is highly unlikely that receipt of those public benefits will have negative immigration consequences for them.

ORR populations are generally not subject to "public charge" determinations for purposes of admissibility and adjustment of status to permanent residency and generally should be encouraged to use available public benefits, including cash assistance, health care, food stamps and other non-cash programs.

(Please see below for specific information about each of the groups that ORR serves.)

"Public Charge" Defined:

Published DHS guidance states that "public charge" means "an alien who has become (for deportation purposes) or is likely to become (for admission or adjustment of status [to permanent resident] purposes '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 alone, however, is not the only basis for determining whether an individual is a public charge. Many other issues and factors must be taken into consideration prior to making a determination as to whether or not an individual is inadmissible, cannot adjust status to permanent residency or is deportable under immigration law. (1) Additionally, there are many public benefits that will not be considered in a "public charge" determination such as Food Stamps, Medicaid, WIC, prenatal care, immunizations, nutrition programs, housing assistance and numerous other non-cash benefits.


A full description of these factors, the public benefits that can and cannot be considered, and how the public charge immigration provisions apply to non-exempt persons can be found in public charge Fact Sheets, Quick Guides (for non-citizens), and Questions and Answers published on the website of the U.S. Citizenship and Immigration Services (USCIS). These materials are also available in many major immigrant languages. The two-page Quick Guides on the website were designed specifically as hand-outs for non-citizens who may have concerns about whether accepting particular benefits will subject them to public charge immigration consequences.

Refugees and Asylees

Refugees and asylees are not subject to "public charge" determinations for purposes of admission and adjustment of status. (2)

Cuban and Haitian Entrants

The Cuban Adjustment Act (CAA), (3) the Nicaraguan Adjustment and Central American Relief Act (NACARA) (4) and the Haitian Refugee Immigration Fairness Act (HRIFA) (5) contain exceptions to the public charge ground of inadmissibility for individuals eligible for adjustment of status under their provisions. However, Cuban and Haitian entrants that seek adjustment under other provisions of the law that do not contain "public charge" exceptions are subject to the usual "public charge" rules. For example, an individual who meets the definition of a Cuban and Haitian entrant, but adjusts status based on a family relationship, would be subject to the usual "public charge" rules.

Amerasians

Certain Amerasians who are admitted to the U.S. as immigrants (as lawful permanent residents) are exempt from the "public charge" ground of inadmissibility. (6)

Victims of a Severe Form of Trafficking

Individuals who apply for T nonimmigrant status are exempt from the public charge ground of inadmissibility. (7) However, T status holders (as opposed to applicants) who apply for adjustment of status are not exempt per se from a public charge review, but may request a waiver. (8)

As described above, most ORR populations are not subject to "public charge" determinations for admission and adjustment purposes. Therefore, such individuals should be encouraged to use available public benefits, including cash assistance, health care, food stamps, and other non-cash programs. It should be noted, however, that in extremely rare circumstances, non-citizens in any immigration status who received public cash assistance or long-term institutionalization paid by the government within their first five years in the U.S. for reasons (such as illness or disability) that existed before their entry into the U.S. could be considered deportable as a public charge. While refugees, asylees, Cuban and Haitian entrants, Amerasians, victims of a severe form of trafficking and lawful permanent residents (LPRs) who previously held one of these statuses are not exempt by law from deportation on public charge grounds, the requirements for deportation of any alien on such grounds are so stringent that they are almost never met. Therefore, such population groups should not be inordinately fearful of deportation as a public charge. (9) The DHS guidance on the USCIS websites and in the former INS field guidance published in 1999 explains the many required deportation criteria. (1)

If you encounter a non-citizen who has concerns regarding the effect of receiving any public benefits on his or her immigration status, including, but not limited to potential deportation and the ability to adjust to permanent residency, please advise the individual to obtain competent legal advice from an authorized immigration attorney or practitioner. (10)

If you have questions regarding any of the information contained in this State Letter, please contact Paul Gleason at (202) 401-4604 or by email at pgleason@acf.hhs.gov.

(1) The former INS' interim field guidance on public charge issues remains in effect under DHS and is available at 64 Fed. Reg. 28689-93 (May 26, 1999). This cite may also be accessed through the Federal Register's website. The INS' proposed rule on public charge was also published in the Federal Register on May 26, 1999. See also, the U.S. Citizenship and Immigration Services (USCIS) "Fact Sheet" on Public Charge and USCIS "Questions & Answers on Public Charge". Also see the U.S. Department of State Foreign Affairs Manual, 9 FAM 40.41

(2) INA § 209(c) (8 USC § 1159(c)). Refugees and asylees do not need to file an affidavit of support with their adjustment of status application. INA § 212(a)(4)(C) and (D) (8 USC § 1182(a)(4)(C) and (D)) require certain individuals applying for adjustment of status based on a family relationship and certain individuals applying based on employment to submit with their adjustment application, an affidavit of support from a qualifying sponsor. An affidavit of support is a legally binding promise that the sponsor will provide support and assistance to the immigrant if necessary (INA § 213A) (8 USC §1183a). If an adjustment applicant fails to submit the affidavit of support, he or she is found inadmissible as a public charge. Again, this requirement does not apply to refugees and asylees.
(3) Cuban Adjustment Act (CAA), Pub. L. 89-732. See Matter of Mesa, 12 I&N Dec. 432 (INS 1967).
(4) Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub.L. 105-100, § 202(a), providing for adjustment of eligible nationals of Cuba and Nicaragua.
(5) Haitian Refugee Immigration Fairness Act (HRIFA), Pub. L. 105-277, Title IX, § 902(a), providing for adjustment of eligible nationals of Haiti.
(6) Amerasian immigrant as defined in § 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988, as amended (8 U.S.C. 1101 note).
(7) INA § 212(a)(13)(A) (8 USC § 1182(a)(13)(A)), as amended by the Trafficking Victims Protection Reauthorization Act of 2003, § 4(b)(4).
(8) INA § 245(l)(2)(A) (8 USC § 1255(l)(2)(A).
(9) To deport an alien on public charge grounds under INA, 237(a)(5), (8 USC § 1227(a)(5)) the law requires that the alien has become a public charge within the first five years after entry from causes not affirmatively shown to have arisen since entry. Under case law and DHS guidance, other factors must also apply: the benefit-granting agency must have 1) sought repayment of the benefits provided to the alien for cash assistance or long-term institutionalization; 2) obtained a final judgment against the alien for repayment; 3) taken all steps to collect on that judgment; and 4) been unsuccessful in those attempts to obtain repayment. Since one or more of these factors frequently does not apply, the government rarely seeks to deport aliens on public charge grounds.
(10) Some sources for such advice include the American Immigration Lawyers' Association (AILA), the lists of immigrant legal assistance organizations maintained by local area Department of Justice immigration courts and the offices of Immigration and Customs Enforcement (ICE/DHS) and U.S. Citizenship and Immigration Services (USCIS/DHS) covering the area where the individual resides.