Practice Advisory on Public Charge INS Guidance and Proposed Regulations

INTRODUCTION

On May 25, 1999, the Department of State issued a cable and the Immigration and Naturalization Service ("INS") issued guidance and proposed regulations clarifying the meaning of "public charge." Under the Immigration & Nationality Act ("INA") §212(a)(4), any alien, who in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible. Additionally, under INA §237(a)(5), any alien who, within five years of date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable.

Prior to the issuance of the recent cable, guidance and proposed regulations, practitioners, immigrants and non-immigrants were virtually in the dark regarding how this ground of inadmissibility and deportability was being and would be interpreted by the INS and the Department of State. This confusion was only heightened by the inconsistent application of the charge and use of different standards by consuls across the world and INS offices across the country. Many immigrant advocates and social service groups have praised these new regulations and applauded the Clinton Administration's efforts to finally create a clear and fair standard.

The purpose of this advisory is to provide background information and a general summary of the regulations and their effect on immigrants and intending immigrants. Practitioners should only rely on this advisory as a source of general information and should closely review the statute, proposed regulations and any and all other relevant materials before advising clients on what constitutes public charge, the consequences of such a finding and strategies to contest the charge.

BACKGROUND

By law, most noncitizens who want to get a green card, otherwise immigrate to the U.S., enter the U.S. temporarily, or re-enter after lengthy travel abroad must show that they are not likely to become a public charge. The new regulations standardize the meaning of this requirement. Immigrants and their families should now be better able to assess the potential immigration consequences of participating in government programs and understand how their applications will be handled when they go to a State Department consulate or to the INS.

Specifically, the guidance provides that the only government programs with a potential negative effect on immigration status are cash welfare for income maintenance and long-term institutional care at government expense. It also clarifies the circumstances under which receipt of cash welfare or institutionalization can become a factor in immigration determinations. For example, permanent residents who travel abroad for less than six months generally should not be questioned about public charge. And, public charge does not affect immigrants who want to become citizens. The new guidance and proposed regulations are summarized in detail in the pages that follow.

The Administration materials explaining the new policy include the following. Most of these materials are available on the web, either directly from the INS web site at www.ins.usdoj.gov, from the National Immigration Law Center at www.NILC.org or from links contained on both of those web sites.

The proposed regulations had a 60 day comment period and will not be effective until final regulations are promulgated. The INS is unlikely to make significant changes in the final rule, given that a high percentage of the comments received were favorable. Although the proposed regulation will not be effective until the final rule is adopted, the INS field guidance and the State Department cable to consuls are effective immediately. The INS question-and-answer piece promises that immigrants who rely on the current guidance "will not suffer harsher immigration consequences based on that reliance."

Highlights of the Guidance

The following programs or benefits will not affect immigration status:

• Use of Medicaid, state Children's Health Insurance Program (CHIP), or other health services -- unless Medicaid is used for long-term institutional care;
• Use of food stamps, WIC, public housing, or other programs that do not provide cash income;
• Use of cash income benefits by family of an immigrant unless the benefits provide sole support for the family.

Use of cash income benefits like Supplemental Security Income (SSI), TANF, or general assistance might affect immigration status, depending on the immigrant's situation. Practitioners should review the materials explaining the new policy listed above in order to determine if receipt of benefits under these programs will affect a client's eligibility for immigration benefits.

Summary of the New Policy

The new federal policy clarifies and interprets the law of public charge as found in the Immigration and Nationality Act. Below is a summary of the most significant portions of the guidance and regulations.

Definition of Public Charge: Public charge is defined as "primarily dependent on the government for subsistence." The guidance places special emphasis on how the government will weigh evidence of an immigrant's receipt of public benefits in determining whether or not the immigrant meets the new definition of public charge and is therefore barred from admission to the U.S. Specifically, the guidance states that only benefits that provide either cash assistance for income maintenance or long-term residential institutionalization are relevant to a public charge screening.

Factors in Determining Public Charge: Under the public charge doctrine, when a person applies for permanent residency in the U.S., the government must deny the application of anyone who is "likely to become a public charge." INA §212(a)(4) . In addition, the government can deny the readmission to the U.S. on public charge grounds of a permanent resident who has left the country for six months or more. In making a public charge determination, the government must look to the future, giving consideration to the immigrant's age, health, income, family size, education and skills, and the immigrant's sponsorship under an affidavit of support. This doctrine has not changed in many years, although the list of factors that must be considered in making a public charge determination was not codified until the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). INA §212(a)(4)(B).

Removal/Deportation Proceedings: There has been no change in the law of public charge in the context of removal (deportation), where receiving assistance is relevant only under unusual circumstances. INA 237(a)(5). The new guidance leaves this policy intact, but incorporates provisions contained in IIRAIRA requiring the immigrant's sponsor to repay certain benefits under an affidavit of support.

Past Use of Income Benefits: If the immigrant is not currently receiving cash income benefits, but relied on them in the past, the adjudicator will scrutinize the immigrant's economic circumstances closely. In such a case, the immigrant must have an affidavit of support and show evidence of income, assets, health, earning power, and/or family resources, that substantiate the immigrant's ability to avoid reliance on government cash income maintenance assistance in the future. The longer ago the cash income benefit was received, the less weight it should be given by the government.

Lawful Permanent Residents (LPR): Removal/deportation of LPRs on public charge grounds is still possible under narrow circumstances. However, the guidance makes clear that LPRs cannot be deported on public charge grounds unless several conditions are met.Permanent residents who travel outside the U.S. for less than six months are generally safe. When immigrants leave the U.S., the law may under certain circumstances view their return as a "re-admission" which requires immigration officials to screen for grounds of inadmissibility, including public charge. It is generally safe for immigrants who already have permanent residency status and who receive public benefits (even cash income maintenance) to travel outside the U.S. for 180 days or less without fear of public charge consequences. The only exceptions are if the immigrant abandoned residence in the U.S., engaged in some form of criminal conduct, or was in deportation proceedings when he or she left the U.S.

When Is Public Charge Relevant?

Most noncitizens who seek a visa or entry to the U.S. are subject to the public charge test. But public charge is not considered in many immigration contexts.

Generally, public charge does not apply to the following:

* citizens or persons applying for citizenship;

* refugees or persons granted asylum in the U.S.;

* persons applying for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998;

* Cubans or Nicaraguans applying for adjustment of status under the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA);

* Cubans applying for adjustment under the Cuban Adjustment Act who were paroled as refugees prior to April 1, 1980;

* Amerasian immigrants when they are first admitted to the U.S.;

* "Lautenberg" parolees (certain Soviet and Indo-Chinese parolees applying for adjustment);

* registry applicants (persons in the U.S. since before January 1, 1972); or

* special immigrant juveniles.

In cases where public charge may not apply, practitioners should be aware that issues surrounding public charge may be used in the application of discretion by judges and INS personnel in determining eligibility for certain benefits. For example, there is no public charge test to qualify for citizenship or registry. However, these do have a "good moral character" requirement, which would not be met if the immigrant had committed fraud on a benefit application. Lawful permanent residents who applied for benefits or a green card by misrepresenting or omitting information on their application should talk to an immigration counselor before applying for citizenship.

For some other immigration applications, such as suspension of deportation and cancellation of removal, public charge is not part of the statutory requirements, but some immigration judges do consider economic circumstances when using their discretionary power to decide whether to grant the immigrant's application. The principles of the new policy should apply to these determinations as well, as the INS recently acknowledged in deciding to eliminate the public benefits question from the NACARA suspension/cancellation application. Hopefully the final rule on public charge will confirm that these principles apply to all discretionary determinations regarding public benefits.

Effect of the Guidance on the New Affidavit of Support

Under the IIRAIRA, most intending immigrants must have a sponsor who completes the new affidavit of support (form I-864). The sponsor must be able to meet a minimum income requirement (125 percent of poverty taking income and assets into account), or a qualifying co-sponsor must submit an additional affidavit. There currently is a question on the affidavit of support form that asks whether the sponsor or any household member or dependent has received any "means-tested public benefit" within the past three years.

The question-and-answer materials accompanying the guidance clarify that despite the existence of this question, receipt of government assistance should not adversely affect an individual's ability to qualify as a sponsor since there is no public charge screening for sponsors, only for intending immigrants. Rather, the reason for including the benefits question on the form was to ensure that any cash income maintenance benefits are not counted toward meeting the requisite 125 percent of poverty income required of the sponsor. It is anticipated that the benefits question will be eliminated from the form when the affidavit of support regulations are finalized in the months to come.

Conclusion

Again, as stated above, this advisory should be used only as a guide. Prior to the adjustment or consular interview, question your client closely to determine if any issues regarding public charge may affect his or her eligibility for a non-immigrant or immigrant visa. Consult the above-mentioned materials to determine what in fact may affect their eligibility for visas. Prepare arguments ahead of time to contest possible concerns of consular or INS officials regarding receipt of certain public benefits. Take the DOS cable, INS guidance and INS proposed regulations with you to the interview to refer to and present in case the consular officer or the INS official does not have them in his or her possession. As always, remember to advocate for your client.

*This piece is written by AILA and fully supported by the Law Offices of Tasoff & Tasoff, which have been active members of the Association since 1954.