Tuesday , August 20 2019

PUBLIC CHARGE

THE LAW AND YOU

WRITTEN BY: Narisara P. Jongjarearn -Tasanont, Attorney at Law

WHAT IS A PUBLIC CHARGE?

A public charge is a non-citizen who is likely to become dependent on government resources to maintain his livelihood.  A public charge occurs when an individual gets money from the government on a regular basis in order to live and pay his/her daily expenses.  Under immigration law, anyone who is considered a public charge will be found to be inadmissible and deportable.  So an individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident.  However, receiving public benefits does not automatically make an individual a public charge. Read on to learn how public charge determinations are made as applied to non-citizens and learn how to make informed choices about whether to apply for certain public benefits.

THE LAW

Public charge has been a part of immigration law for over 100 years.  Under Section 212(a)(4) of the Immigration and Nationality Act (INA), anyone who seeks admission to the United States or seeks to adjust status to legal permanent residence (green card) is inadmissible if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”   If an individual is inadmissible as a public charge, admission to the United States or adjustment of status is denied.

Many non-citizens who have received such assistance may not be aware of this public charge law.  Or if they are aware may have some concern about whether they may face negative immigration consequences for having received Federal, state, or local public benefits.  But some non-citizens and their families are eligible for public benefits without being found to be a public charge.
WHO IS CONSIDERED A PUBLIC CHARGE?

 

A public charge is an individual who is likely to become dependent on the government for subsistence as his/her primary means of support.  This is shown by either the receipt of public cash assistance for income maintenance, or placement in a facility for long-term care at government expense. In determining whether an alien meets this definition for public charge inadmissibility, many factors must be considered, including age, health, family status, assets, resources, financial status, education, and skills.  But if an affidavit of support is required and not provided, then the individual will be considered a public charge.

 

WHAT BENEFITS ARE SUBJECT TO PUBLIC CHARGE CONSIDERATION

Benefits that provide cash assistance for income maintenance are usually subject to public charge considerations.  This includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and State or local cash assistance programs for income maintenance, often called “General Assistance” programs.  When a non-citizen accepts these kinds of benefits it could make the non-citizen inadmissible as a public charge, if all other criteria are met.  However, the non-citizen will not be automatically considered inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds.  Each determination of whether a non-citizen is a public charge is made on a case-by-case basis using the totality of the circumstances test.  This means that each individual’s specific facts and circumstances will be considered in making the public charge determination.

Another benefit, provided by Medicaid, when used to support non-citizens in an institution for long term care, such as a nursing home, may be subject to public charge considerations.  But again, this action alone will not make a non-citizen automatically considered a public charge.  All factors must be considered using the totality of the circumstances standard.

BENEFITS NOT SUBJECT TO PUBLIC CHARGE CONSIDERATION

Usually, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration.  Benefits that do not subject a non-citizen to public charge considerations include: Medicaid and other health insurance and health services, children’s Health Insurance Program (CHIP), 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, housing benefits, child care services, job training programs, and unemployment compensation, to name a few.  This is not a complete list.  Although some of programs listed may provide cash benefits, they are not subject to public charge consideration because the cash given in such instances are not for daily living maintenance.

Narisara P. Jongjarearn-Tasanont works out of her law office in Los Angeles. She is also the Executive Director of  the Thai American Citizens Alliance.  She is an active member of the State Bar of California and the American Immigration Lawyer’s Association.  You can make an appointment  for a consultation  to discuss  your legal concerns by calling 323-704-6355 The contents of this article are not intended as individualized legal advice.

 

Check Also

THE BENEFITS OF U.S. CITIZENSHIP

THE LAW AND YOU WRITTEN BY: Narisara P. Jongjarearn -Tasanont, Attorney at Law The Thai ...

Leave a Reply

Your email address will not be published. Required fields are marked *