http://www.murthy.com/mb_pdf/arc_mb.html Dated Jan 08 2010
The U.S. Citizenship and Immigration Services (USCIS) recently issued a factsheet clarifying issues related to the public charge concept. Specifically, the factsheet discusses the consequences of accessing certain public benefit programs for those in an immigration status. Given the current economic situation, this topic is particularly timely. Questions often reach the Murthy Law Firm regarding potential repercussions from taking advantage of certain government benefits and the possible impact on the individual's and/or family's immigration status. Many programs listed carry immigration-related restrictions on eligibility.
Public Charge and Inadmissibility to United States
A public charge is defined as an individual who is likely to become primarily dependent on the U.S. government for subsistence, as demonstrated by receipt of public cash assistance or institutionalization for long-term care at government expense. An individual who is likely to become a public charge is inadmissible to the United States, as well as deportable from the United States. Inadmissibility refers to those individuals not permitted to enter the United States. Applicants for adjustment of status (AOS, or Form I-485) are regarded as applicants for admission, even though they are physically in the United States. Thus, concerns are raised when an individual applies for certain pubic benefit programs, if otherwise eligible to do so.
Since the public charge provisions refer to one's being "likely" to become a public charge, the determination of whether an individual fits within this category involves weighing various factors. There are certain types of benefits that involve public funding, which are considered in the public charge analysis, and others that are not considered. The fact that a person may have experienced a temporary need does not necessarily indicate that s/he is likely to become primarily dependent upon the U.S. government for subsistence.
Benefits Not Considered for Public Charge Computation
The USCIS factsheet sets forth a list of benefits that are not subject to the public charge considerations. The reason given for excluding these benefits is that they are not intended for income maintenance.
Unemployment Compensation
One item of particular interest in the current economic climate is unemployment compensation. This is specified as NOT being considered for public charge purposes. We at the Murthy Law Firm wrote on this topic in our February 20, 2009 article, Unemployment Benefits and Impact on U.S. Immigration, available on MurthyDotCom.
Job Training Programs or Other Assistance
Also on the list of benefits not considered in the public charge analysis are: job training programs, in-kind community-based programs or assistance (crisis counseling, soup kitchens, short-term shelter). These types of services are often needed on a temporary basis, when there are spousal abuse problems or other family disruption.
Social Security Benefits, Food Stamps, Other Payments
The list also excludes the following from consideration: cash payments that have been earned (certain social security benefits, government pensions, veterans' benefits), emergency disaster relief, energy assistance, housing benefits, Medicaid and other health insurance / services (except for long-term institutional care), nutrition programs (food stamps, WIC, school lunch) and others.
USCIS WebSite Provides Full List
The full list is set out in the factsheet. While some of the programs provide cash benefits, they do not fall within public charge, as they are not intended for income maintenance. It is noted that some of these programs are intended to avoid the need for on-going cash assistance.
Benefits Considered Under Public Charge
The factsheet lists programs that will be considered when determining if an individual is likely to become a public charge. The receipt of these benefits, alone, does not automatically make one inadmissible or removable. Determination is made on a case-by-case basis, depending upon the circumstances.
SSI/TANF and State / Local Programs Could Cause Problems
Programs that fall under consideration are those that involve cash payments for income maintenance. The list includes: Supplemental Security Income (SSI), cash payments from Temporary Assistance for Needy Families (TANF), and state or local cash general assistance programs.
SSI and TANF have immigration-related restrictions. Additionally, if the potential applicant for benefits is the beneficiary of an Affidavit of Support (Form I-864), then the sponsor's income may need to be considered when determining whether an individual is eligible for any of these benefits. This should be reviewed carefully before making any application for benefits.
Conclusion
The factsheet provides a helpful explanation of the programs that are and are not considered under the public charge analysis. We at the Murthy Law Firm do see situations in which individuals are afraid to avail themselves of the help they need, due to concerns of potential impact on their U.S. immigration process. Since some of these programs have immigration-related restrictions on eligibility, it is important to accurately answer all questions on the necessary applications.
