Public Benefits and Immigration
Published: November 16, 2009

In the past month, U.S. Citizenship and Immigration Services released a “Fact Sheet” outlining the law as it relates to a foreign national’s receipt of certain public benefits in the U.S. and the possible adverse consequences it might pose for his/her effort to become a U.S. permanent resident. In sum, the Fact Sheet makes clear that not all benefits will present adverse consequences, and that merely receiving a “need based” benefit will not, in and of itself, be a basis to deny an applicant their resident status.

A “public charge” has been defined as “an individual primarily dependent on the government for subsistence, as demonstrated by either receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” For almost as long as there have been U.S. immigration laws, there have been provisions setting forth the undesirability of having individuals come to our country to become a public charge. But for a handful of exceptions, those deemed “likely, at any time, to become a public charge” will be denied the right to live permanently in the U.S.

What factors are relevant in the determination?

  1. But for a few exceptions, in the context of family based immigration, if the foreign national does not have an income eligible “sponsor” providing an Affidavit of Support, she will be deemed likely to become a public charge and her application for U.S. residence or immigrant visa will be denied.
  2. Even if the affidavit of support requirement is met, other factors can be taken into account in the public charge determination, such as age, health, family status, assets, resources, financial status and education/skills as well as whether the individual has already received certain U.S. government benefits.

U.S. or state government benefits that will raise a red flag, but not necessarily lead to a public charge determination, include:

  • Supplemental Security Income (SSI) under Title XVI of Social Security Act
  • Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program)
  • State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs)
  • Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution)

Receipt of non-cash benefits (other than institutionalization for long term care) are generally NOT taken into account in the “public charge” analysis. Those benefits include:

  • 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
  • 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
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
  • Job training programs
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)

Lastly, as stated, not all applicants for U.S. residence are subject to public charge scrutiny, and those exempt applicants include: Refugees, Asylees, certain battered spouses or children, and host of other limited categories of immigrants.

Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois