Field Guidance on Deportability and Inadmissibility on Public Charge Grounds

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

[INS No. 1988-99]

Field Guidance on Deportability and Inadmissibility on Public

Charge Grounds

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Notice.

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SUMMARY: The Department of Justice (Department) is publishing a

proposed rule in this issue of the Federal Register which proposes to

establish clear standards governing a determination that an alien is

inadmissible or ineligible to adjust status, or has become deportable,

on public charge grounds.

Before the proposed rule becomes final, the Immigration and

Naturalization Service (Service) is publishing its field guidance on

public charge issues as an attachment to this notice. This is necessary

to help alleviate public confusion over the meaning of the term

``public charge'' in immigration law and its relationship to the

receipt of Federal, State, and local public benefits. This field

guidance will also provide aliens with better guidance as to the types

of public benefits that will and will not be considered in public

charge determinations.

DATES: This notice and field guidance are effective May 21, 1999.

FOR FURTHER INFORMATION CONTACT: Sophia Cox or Kevin Cummings,

Immigration and Naturalization Service, 525 I Street, NW, Office of

Adjudications, Washington, DC 20536, telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION: Recent immigration and welfare reform laws

have generated considerable public confusion about the relationship

between the receipt of Federal, State, and local public benefits and

the meaning of ``public charge'' in immigration statutes governing

deportation, admissibility, and adjustment of status. The Department

decided to publish a proposed rule defining ``public charge'' in order

to reduce the negative public health consequences generated by the

existing confusion and to provide aliens with better guidance as to the

types of public benefits that will and will not be considered in public

charge determinations.

In addition, the Service has issued guidance to its field officers

on a variety of issues related to public charge determinations. That

field guidance is included as an attachment to this notice to provide

additional information to the public on the Service's implementation of

the public charge provisions of the immigration laws.

Dated: May 20, 1999.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

U.S. Department of Justice, Immigration and Naturalization Service

May 20, 1999.

Memorandum for All Regional Directors

From: Michael A. Pearson, Executive Associate Commissioner, Office

of Field Operations

Subject: Public Charge: INA Sections 212(a)(4) and 237(a)(5)

This memorandum provides guidance concerning the public charge

ground of inadmissibility, section 212(a)(4) of the Immigration and

Nationality Act (INA), and the related deportation charge under

section 237(a)(5) of the INA. It also discusses the impact of these

subsections of the new enforceable Affidavit of Support prescribed

by section 213A of the INA, established by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and welfare

reform laws.\1\

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\1\ The Personal Responsibility and Work Opportunity

Reconciliation Act of 1996, Pub. L. 104-193, as amended by the

Balanced Budget Act of 1997, Pub. L. 105-33; the Agricultural

Research, Extension, and Education Reform Act of 1998, Pub. L. 105-

185; and the Noncitizen Technical Amendments Act of 1998, Pub. L.

105-306.

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IIRIRA and the recent welfare reform laws have sparked public

confusion about the relationship between the receipt of federal,

state, local public benefits and the meaning of ``public charge''

under the immigration laws. Accordingly, the Service is taking two

steps to ensure the accurate and uniform application of law and

policy in this area. First, the Service is issuing this memorandum

which both summarizes longstanding law with respect to public charge

and provides new guidance on public charge determinations in light

of the recent changes in law. In addition, the Service is publishing

a proposed rule for notice and comment that will for the first time

define ``public charge'' and discuss evidence relevant to public

charge determinations. Although the definition of public charge is

the same for both admission/adjustment and deportation, the

standards of public charge is the same for both admission/adjustment

and deportation, the standards applied to public charge

adjudications in each context are significantly different and are

addressed separately in this memorandum. After discussing the

definition and standards for public charge determinations, the

memorandum goes on to discuss exceptions from public charge

determinations and particular types of benefits that may and may not

be considered for public charge purposes, in addition to other

issues.

I. Definition of ``Public Charge''

The Service is publishing a rule for notice and comment that

defines ``public charge'' or purposes of both admission/adjustment

and deportation. That rule proposes that ``public charge'' means an

alien who has become (for deportation purposes) or who is likely to

become (for admission/adjustment purposes) ``primarily dependent on

the government for subsistence, as demonstrated by either (i) the

receipt of public cash assistance for income maintenance or (ii)

institutionalization for long-term care at government expense.''

Institutionalization for short periods of rehabilitation does not

constitute such primary dependence.

The Service is adopting this definition immediately, while

allowing the public an opportunity to comment on the proposed rule.

Accordingly, officers should not initiate or pursue public charge

deportation cases against aliens who have not received public cash

benefits for income maintenance or who have not been

institutionalized for long-term care. Similarly, officers should not

place any weight on the receipt of non-cash public benefits (other

than institutionalization) or the receipt of cash benefits for

purposes other than for income maintenance with respect to

determinations of admissibility or eligibility for adjustment on

public charge grounds. Supplementary guidance will be issued, as

necessary, in conjunction with publication of a final rule.

See section 6, below, for a more detailed discussion of

particular types of benefits that may and may not be considered for

public charge purposes.

2. Admission and Adjustment of Status

Under INA section 212(a)(4), an alien seeking admission to the

United States or seeking to adjust status to that of an alien

lawfully admitted for permanent residence is inadmissible if the

alien, ``at the time of application for admission or adjustment of

status, is likely at any time to become a public charge.'' \2\

IIRIRA amended section 212(a)(4) of the INA to codify the factors

relevant to a public charge determination. Officers must consider,

at a minimum, the alien's age, health, family status, assets,

resources, and financial status, and education and skills when

making a public charge inadmissibility determination. Every denial

order based on public charge must reflect consideration of each of

these factors and specifically articulate the reasons for the

officer's determination.

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\2\ See Section 4 below on categories of aliens who are not

subject to public charge determinations.

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The most significant change to section 212(a)(4) under IIRIRA is

the creation of a new affidavit of support (AOS), which, coupled

with new section 213A, imposes on the sponsor a legally enforceable

support obligation. The law requires that sponsors demonstrate that

they are able to maintain the sponsored alien at an annual income of

not less than 125 percent of the federal poverty level. The AOS

requirement applies to all immediate relatives (including orphans),

family-based immigrants, and those employment-based immigrants who

will work for a relative or for a firm in which a U.S. citizen or

lawful permanent resident (LDR) relative holds a 5 percent or more

ownership interest. Immigrants seeking

[[Page 28690]]

admission or adjustment of status in these categories are

inadmissible under subparagraphs (C) and (D) of the modified section

212(a)(4), respectively, unless an appropriate sponsor has completed

and filed a new AOS if the application for an immigrant visa or

adjustment of status was filed on or after December 19, 1997. Note

that this requirement applies to these aliens even if, under the

factors codified in section 212(a)(4)(B), the adjudicator would

ordinarily find that the alien is not likely to become a public

charge. The only exceptions from this requirement are for qualified

battered spouses and children (and their eligible family members)

and for qualified widow(er)s of citizens, if these aliens have filed

visa petitions on their own behalf. Where such an AOS has been filed

on an alien's behalf, it should be considered along with the

statutory factors in the public charge determination.

The standard for adjudicating inadmissibility under section

212(a)(4) has been developed in several Service, BIA, and Attorney

General decisions and has been codified in the Service regulations

implementing the legalization provisions of the Immigration Reform

and Control Act of 1986. These decisions and regulations, and

section 212(a)(4) itself, create a ``totality of the circumstances''

test.

In determining whether an alien is likely to become a public

charge, Service officers should assess the financial responsibility

of the alien by examining the ``totality of the alien's

circumstances at the time of his or her application * * * The

existence or absence of a particular factor should never be the sole

criterion for determining if an alien is likely to become a public

charge. The determination of financial responsibility should be a

prospective evaluation based on the alien's age, health, family

status, assets, resources and financial status, education, and

skills, among other factors.\3\ An alien may be considered likely to

become a public charge even if there is no legal obligation to

reimburse the benefit-granting agency for the benefits or services

received, in contrast to the standards for deportation, discussed

below.\4\

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\3\ 8 C.F.R. Sec. 245a.4(b)(11)(iv)(B), and see INA

Sec. 212(a)(4)(B). The federal courts have also endorsed this

``totality of the circumstances'' test. See, e.g., Zambrano v. INS,

972 F.2d 1122 (9th Cir. 1992), judgment vacated on other grounds,

509 U.S. 918 (1993).

\4\ Matter of Harutunian, 14 I. & N. Dec. 583 (BIA 1974)

(interpreting Sec. 212(a)(15), recodified as Sec. 212(a)(4)).

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In addition, the Attorney General has ruled that ``[s]ome

specific circumstances, such as mental or physical disability,

advanced age, or other fact reasonably tending to show that the

burden of supporting the alien is likely to be cast on the public,

must be present. A healthy person in the prime of life cannot

ordinarily be considered likely to become a public charge,

especially where he has friends or relatives in the United States

who have indicated their ability and willingness to come to his

assistance in case of an emergency.'' \5\ Under the new AOS rules,

all family-based immigrants (and some employment-based immigrants)

will have a sponsor who has indicated an ability and willingness to

come to the immigrant's assistance.

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\5\ Matter of Martinez-Lopez, 10 I&N 409, 421-422 (AG, Jan. 6,

1964).

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Current Receipt of Cash Benefits for Income Maintenance and Current

Institutionalization

If at the time of application for admission or adjustment an

alien is receiving a cash public assistance for income maintenance

or is institutionalized for long-term care (as discussed in section

6, below), that benefit should be taken into account under the

totality of the circumstances test, along with the other statutory

factors under section 212(a)(4)(B)(i) and any AOS. It is possible,

for example, that an alien receiving a small amount of cash for

income maintenance purposes could be determined not likely to become

a public charge due to other positive factors under the totality of

the circumstances test. Aliens should not be asked to repay the cost

of any benefits received in order to qualify for admission or

adjustment.

Current receipt of non-cash benefits or the receipt of special-

purpose cash benefits not for income maintenance should not be taken

into account under the totality of the circumstances test in

determining whether the alien is likely to become a public charge.

Past Receipt of Cash Benefits for Income Maintenance and Past

Institutionalization

Past receipt of cash income-maintenance benefits does not

automatically make an alien inadmissible as likely to become a

public charge, nor does past institutionalization for long-term care

at government expense. Rather this history would be one of many

factors to be considered in applying the totality of the

circumstances test. In the case of an alien who has received cash

income-maintenance benefits in the past or who has been

institutionalized for long-term care at government expense, a

Service officer determining admissibility should assess the totality

of the alien's circumstances at the time of the application for

admission or adjustment and make a forward-looking determination

regarding the likelihood that the alien will become a public charge

after admission or adjustment. The longer ago an alien received such

cash benefits or was institutionalized, the less weight these

factors will have as a predictor of future receipt. Also, the

``length of time an applicant has received public cash assistance is

a significant factor.'' \6\ The longer an alien has received cash

income-maintenance benefits in the past and the greater the amount

of benefits, the stronger the implication that the alien is likely

to become a public charge. The negative implication of past receipt

of such benefits or past institutionization, however, may be

overcome by positive factors in the alien's case demonstrating an

ability to be self-supporting. For instance, a work-authorized alien

who has current full-time employment or an AOS should be found

admissible despite past receipt of cash public benefits, unless

there are other adverse factors in the case.

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\6\ 8 CFR Sec. 245a.2(k)(4).

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Past receipt of non-cash benefits (other than

institutionalization for long-term care) should not be taken into

account under the totality of the circumstances test. Similarly,

past receipt of special-purpose cash benefits not for income

maintenance should be not taken into account.

Repayment of Public Benefits

IIRIRA did not create any requirement that aliens repay benefits

received in the past in order to avoid being found inadmissible on

public charge grounds, nor has such a requirement existed in the

past. Accordingly, officers should not instruct or suggest that

aliens must repay benefits previously received as a condition of

admission or adjustment, and they should not request proof of

repayment as a condition for finding the alien admissible to the

United States. (See INS Memorandum. ``Public Charge. INA Sections

212(a)(4) and 237(a)(5)--Duration of Departure for LPRs and

Repayment of Public Benefits,'' dated December 16, 1997, for further

discussion.)

Repayment is relevant to the public charge inadmissibility

determination only in very limited circumstances. If at the time of

application for admission or adjustment of status the alien is

deportable on public charge grounds under section 237(a)(5) of the

INA due to an outstanding public debt for a cash benefit or the

costs of institutionalization, then the alien is inadmissible. Only

a debt that satisfies the three-part test under section 237(a)(5),

described below, will render an alien deportable as a public charge

and therefore ineligible for admission or adjustment. If the debt is

paid, then the alien will no longer be inadmissible based on the

debt, and the usual totality of the circumstances test would apply.

While the Service may not demand

[[Page 28691]]

that an alien repay a public debt which meets the three-part test,

it may inform an alien that if the alien does not repay the debt, he

or she will continue to be inadmissible to the United States.

Adjudicators should make sure also to inform aliens that even if

they pay the debt, they may still be determined to be inadmissible

as an alien likely to become a public charge under the totality of

the circumstances test.

If an INS officer finds evidence of possible benefit fraud in

the course of performing his or her immigration duties, that

information should be forwarded through official channels to the

appropriate benefit-granting agency for possible investigation and

enforcement action. In such cases, absent a determination of fraud

by the benefit-granting agency, immigration benefits to which the

alien is otherwise entitled should not be withheld or denied.

3. Public Charge Determination--Deportation

The determination of whether an alien is subject to removal

under section 237(a)(5) is quite different from the determination of

whether an alien is inadmissible under section 212(a)(4), although

in both contexts the focus is on the receipt of cash benefits for

income maintenance purposes. Section 237(a)(5) of the INA states

that ``[a]ny alien who, within 5 years after the date of entry, has

become a public charge from causes not affirmatively shown to have

arisen since entry is deportable.'' This section requires a two-step

determination. First, the Service must determine whether the alien

has become a public charge within 5 years after the date of

entry.\7\ Second, if the alien has become a public charge, then the

Service must determine whether the alien has demonstrated that the

circumstances that caused the alien to become a public charge arose

after the alien's entry into the United States. An alien who can

make such a showing is not removable under section 237(a)(5).

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\7\ The 5-year period states again each time an alien enters the

United States after a departure, except for LPRs who are not

applicants for admission unless they meet the terms of section

101(a)(13)(C).

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We respect to whether an alien has become a public charge, the

Attorney General has determined that the mere receipt of a public

benefit by an alien does not make an alien a public charge for

purposes of deportation under section 237(a)(5). Rather, in Matter

of B, 3 I. & N. Dec. 323 (BIA and AG 1948),\8\ the Attorney General

established a strict three-part test to determine if an alien has

become a public charge. In order for an alien to become a public

charge under section 237(a)(5), the following 3 requirements must be

met:

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\8\ While this decision concerned the public charge provision of

the 1917 Act, the test established continues to be valid under

current law, which is substantially the same as the 1917 law. See

Matter of L. 6 I. & N. Dec. 349 (BIA 1954), and Matter of Harutunian

14 I. & N. Dec. 583 (BIA 1974).

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(1) The state or other government entity that provides the

benefit must, by law, impose a charge or fee for the services

rendered to the alien. In other words, the alien or designated

relatives or friends must be legally obligated to repay the benefit-

granting agency for the benefits or services provided, if there is

no reimbursement requirement under law, the alien cannot be said to

be a public charge.

(2) The responsible benefit-granting agency officials must make

a demand for payment for the benefit or services from the alien or

other persons legally responsible for the debt under federal or

state law (e.g., the alien's sponsor).

(3) The alien and other persons legally responsible for the debt

fail to repay after a demand has been made.

The demand for repayment must be made within 5 years of an

alien's entry in order to render the alien deportable as a public

charge.\9\ In addition, the Service has determined that, in order

for an alien to become deportable as a public charge as a result of

the failure of the sponsor to repay the agency, the benefit-granting

agency must take all available actions to collect from the sponsor.

This includes filing an action in the appropriate court and taking

all steps available under law to enforce a final judgment against

the sponsor or other obligated party.

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\9\ Matter of L, 6 I. & N. Dec. 349 (BIA 1954).

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Deportations based on public charge grounds have been rare, and

the new immigration and welfare laws are not likely to change this.

First, for aliens who are not sponsored under the new AOS, it is

unlikely that there will be a legal obligation to repay public

benefits or that the benefit-granting agency will make a demand for

repayment. Thus, just as in the past, the first two prongs of the

Matter of B test generally will not be satisfied. Only aliens who

apply for immigrant visas or adjustment of status on or after

December 19, 1997, may be sponsored under the new, enforceable AOS,

which could satisfy the standards for deportation under Matter B.

However, under the new welfare reform laws, these same aliens will

generally be barred from receiving federal means-tested public

benefits for the first 5 years after admission or adjustment--the

critical period for purposes of deportability.

In addition, under the ``deeming'' rules, and the sponsor's

spouse's income and resources will be attributed to the alien in

assessing his or her eligibility to receive a means-tested benefit,

which would normally raise the alien's income over the benefit

eligibility threshold. Only if an immigrant receives a cash benefit

for income-maintenance within 5 years of entry or is

institutionalized for long-term care (despite the eligibility

limitations), there is a demand for repayment by the benefit-

granting agency, and the sponsor or other responsible party fails to

repay, can the immigrant become deportable as a public charge.

However, even in this case, the alien must be given an opportunity

to prove that he or she became a public charge for causes that arose

after entry. If an alien can make such a showing, he or she will not

be deportable as a public charge. Thus, the Service is unlikely to

see a significant increase in cases of deportability on public

charge grounds.

4. Exceptions From Public Charge Determinations

Under the new laws, refugees and asylees remain exempt from

public charge determinations for purposes of admission and

adjustment of status pursuant to sections 207, 208, and 209 of the

INA. Similarly, Amerasian immigrants are exempt from the public

charge ground of inadmissibility for their initial admission.\10\ In

addition, various statutes contain exceptions to the public charge

ground of inadmissibility for aliens eligible for benefits under

their provisions, including the Cuban Adjustment Act (CAA), the

Nigaraguan Adjustment and Central American Relief Act (NACARA), and

the Haitian Refugee Immigration Fairness Act (HRIFA).\11\ These laws

provide avenues of adjustment for certain aliens--including Cuban/

Haitian entrants,\12\ who remain eligible for many public benefits

under welfare reform--without subjecting them to screening as

potential public charges.

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\10\ Amerasian immigrants are defined in section 584 of the

Foreign Operations, Export Financing, and Related Programs

Appropriations Act of 1988.

\11\ See Matter of Mesa, 12 I. & N. Dec. (Dep. Assoc. Comm.

1967) (public charge exception under the CAA); NACARA, Pub. L. 105-

100, section 202(a); HRIFA, Pub. L. 105-277, Title IX, section 902.

\12\ Cuban/Haitian entrants are defined in section 501(c)(e) of

the Refugee Education Assistance Act of 1980.

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Most LPRs who have been outside the United States for 180 days

or less are not applicants for admission and therefore are not

subject to the grounds of inadmissibility, pursuant to section

101(a)(13)(C) of the INA.\13\ Accordingly, absent an indication that

they may be applicants for admission, such LPRs should not routinely

be questioned on issues related to the likelihood that they will

become a public charge.

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\13\ Section 101(a)(13)(C) provides that an LPR seeking

admission to the U.S. is not an applicant for admission unless the

alien: (i) has abandoned or relinquished that status; (ii) has been

absent for more than 180 days; (iii) has engaged in illegal activity

after leaving the U.S.; (iv) left the U.S. while in removal

proceedings; (v) has committed certain offenses in the U.S.; or (vi)

is attempting to enter other than at a port of entry or has not been

admitted to the U.S. after inspection and authorization.

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Under section 249 of the INA, which allows aliens who have been

in the United States since January 1, 1972, to ``register'' as LPRs,

public charge is not a factor in determining eligibility. Receipt of

public benefits is not an adverse factor in meeting the ``good moral

character'' requirement for registry, absent evidence that an

applicant procured or attempted to procure such benefits through

fraud or misrepresentation.

5. Receipt of Benefits by Children and Other Family Members

The Service has addressed the issue of receipt of benefits by

children and other family members in a number of memoranda on the

issue of public charge for aliens applying for legalization under

section 245A of the INA. The Service's approach to the receipt of

benefits by family members in the legalization context has been

upheld in federal court and should govern the question for general

public charge determinations as

[[Page 28692]]

well.\14\ The rule is well summarized in an April 21, 1988,

memorandum from the Associate Commissioner for Examinations to the

Regional Commissioners.

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\14\ See Perales v. Reno, 48 F.3d 1305 (2d Cir. 1995).

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As a general rule, the receipt of * * * benefits by a member of

the * * * applicant's family is not attributable to the applicant

for purposes of determining the likelihood that the applicant will

become a public charge. * * * If, however, the family is reliant on

the * * * benefits as its sole means of support, the * * * applicant

may be considered to have received public cash assistance. This

determination is to be made on a case-by-case basis and upon

consideration of the totality of the applicant's circumstances.

Although this memorandum specifically addressed the receipt of

cash assistance under the former Aid to Families with Dependent

Children (AFDC) program, the rule is applicable generally to other

cash benefit programs that may give rise to public charge

determinations (See section 6.A below.) Accordingly, Service

officers should not attribute cash benefits received by U.S. citizen

or alien children or other family members to alien applicants for

purposes of determining whether the applicant is likely to become a

public charge, absent evidence that the family is reliant on the

family member's benefits as its sole means of support.

6. Benefits That May and May Not Be Considered for Public Charge

Purposes

The term ``public charge'' has not been defined in law or

regulation and, in the past, the Service has not provided

comprehensive guidance on all kinds of benefits that could cause an

alien to be considered a public charge. In light of the new laws and

the complexity of the federal, state, and local public benefits

system, this issue now requires that the Service adopt uniform

standards. Accordingly, the Service is publishing a proposed rule

for notice and comment, as noted above. The proposed standards take

into account the law and public policy decisions concerning alien

eligibility for public benefits and public health considerations, as

well as past practice by the Service and the Department of State.

It has never been Service policy that any receipt of services or

benefits paid for in whole or in part from public funds renders an

alien a public charge, or indicates that the alien is likely to

become a public charge. The nature of the public program must be

considered. For instance, attending public schools, taking advantage

of school lunch or other supplemental nutrition programs, or

receiving emergency medical care would not make an alien

inadmissible as a public charge, despite the use of public funds.

While the Service has not previously issued guidance on a program-

by-program basis, the Department of State did codify its policy in

the Foreign Affairs Manual (FAM), excluding Food Stamps from

consideration for public charge purposes because of its

``supplemental'' nature.\15\ The Service is now taking a similar

approach by adopting a definition of public charge that focuses on

whether the alien is or is likely to become primarily dependent on

the government for subsistence. After extensive consultation with

benefit-granting agencies, the Service has determined that the best

evidence of whether an alien is primarily dependent on the

government for subsistence is either (i) the receipt of public cash

assistance for income maintenance, or (ii) institutionalization for

long-term care at government expense.

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\15\ 9 FAM Sec. 40.41 n.9.1

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The Service is proposing this definition by regulation and

adopting it on an interim basis for several reasons. First,

confusion about the relationship between the receipt of public

benefits and the concept of ``public charge'' has deterred eligible

aliens and their families, including U.S. citizen children, from

seeking important health and nutrition benefits that they are

legally entitled to receive. This reluctance to access benefits has

an adverse impact not just on the potential recipients, but on

public health and the general welfare. Second, non-cash benefits

(other than institutionalization for long-term care) are by their

nature supplemental and do not, alone or in combination, provide

sufficient resources to support an individual or family. In addition

to receiving non-cash benefits, an alien would have to have either

additional income--such as wages, savings, or earned retirement

benefits--or public cash assistance. Thus, by focusing on cash

assistance for income maintenance, the Service can identify those

who are primarily dependent on the government for subsistence

without inhibiting access to non-cash benefits that serve important

public interests. Finally, certain federal, state, and local

benefits are increasingly being made available to families with

incomes far above the poverty level, reflecting broad public policy

decisions about improving general public health and nutrition,

promoting education, and assisting working-poor families in the

process of becoming self-sufficient. Thus, participation in such

non-cash programs is not evidence of poverty or dependence.

In adopting this new definition, the Service does not expect to

substantially change the number of aliens who will be found

deportable or inadmissible as public charges. First, under the

stricter eligibility rules of the welfare reform laws, many legal

aliens are no longer eligible to receive certain types of public

benefits, so they run no risk of becoming public charges by virtue

of receiving such benefits. Many of those who remain eligible for

federal, state, and local public benefits are LPRs, refugees, and

asylees, who are unlikely to face public charges screening in any

case in light of the section 101(a)(13)C) and the statutory

exceptions.\16\ Further, in light of the Matter of B test,

deportations on public charge grounds have been rare and are

expected to remain so. With respect to admissibility, the new AOS

has already raised the threshold for many families to demonstrate

that a sponsored alien is not likely to become a public charge. In

addition, the statutory factors under section 212(a)(4)(B) continue

to apply. This, while the Service will not take an alien's past or

current receipt of non-cash benefits such as medical assistance into

account for public charge purposes, the alien's age, health, and

resources must be considered (along with the other statutory

factors) in determining whether he or she is likely to become

primarily dependent on the government for subsistence in the future.

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\16\ See section 4, above, for a discussion of public charge

exceptions.

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The rules governing alien eligibility for federal, state, and

local public benefits are complex and subject to change, including

significant state-by-state variations. INS officers are not expected

to know the substantive eligibility rules for different public

benefit programs. Rather, this guidance and the proposed rule are

intended to make public charge determinations simpler and more

uniform, while simultaneously providing greater predictability to

the public.

A. Benefits That May Be Considered for Public Charge Purposes

Cash assistance for income maintenance and institutionalization

for long-term care at government expense may be considered for

public charge purposes. Programs that provide such benefits include:

1. Supplemental Security Income (SSI) under Title XVI of Social

Security Act;

2. Temporary Assistance for Needy Families (TANF) cash

assistance (part A of Title IV of the Social Security Act--the

successor to the AFDC program);\17\

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\17\ States have flexibility in administering the TANF program

and may choose to provide non-cash assistance such as subsidized

child care or transportation vouchers in addition to cash

assistance. Such non-cash benefits should not be considered for

public charge purposes. States may also provide non-recurrent cash

payments for specific crisis situations under TANF. Such payments

should not be considered for public charge purposes since they are

not cash for income maintenance.

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3. State and local cash assistance programs that provide

benefits for income maintenance (often called ``General Assistance''

programs); and

4. Programs (including Medicaid) supporting aliens who are

institutionalized for long-term care e.g., in a nursing home or

mental health institution).\18\

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\18\ Costs for imprisonments for conviction of a crime are not a

basis for a public charge determination.

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Past or current receipt of such cash benefits does not lead to a

per se determination that an alien is either inadmissible or

deportable as a public charge. Rather, such benefits should be taken

into account under the totality of the circumstances test for

purposes of admission/adjustment and should be considered for

deportation purposes under the standards of section 237(a)(5) and

Matter of B.

Note that not all cash assistance is provided for purposes of

income maintenance, and thus not all cash assistance is relevant for

public charge purposes. For example, some energy assistance programs

provide supplemental benefits through cash payments, in addition to

vouchers or in-kind benefits, depending on the locality and the

[[Page 28693]]

type of fuel needed. Likewise, cash payments could also be provided

for child care assistance. Such supplemental, special-purpose cash

benefits should not be considered in public charge determinations

because they are not evidence of primary dependence on the

government for subsistence.

B. Benefits That May Not Be Considered for Public Charge Purposes

Non-cash benefits (other than institutionalization for long-term

care) should not be taken into account in making public charge

determinations, nor should special-purpose cash assistance that is

not intended for income maintenance. Therefore, past, current, or

future receipt of these benefits should not be considered in

deterining whether an alien is or is likely to become a public

charge. Further, an alien need not repay benefits already received

or withdraw form a benefit program in order to be eligible for

admission or adjustment of status.

It is not possible to list all the supplemental non-cash

benefits or special-purpose cash benefits that an alien may receive

that should not be considered for public charge purposes, but common

examples include:

1. 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,\19\

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\19\ The Service's decision not to consider Medicaid, CHIP, and

Food Stamps for public charge purposes does not affect the authority

of benefit granting agencies to seek repayment for benefits received

by an alien from the alien's sponsor under the new AOS.

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2. Children's Health Insurance Program (CHIP);

3. 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;

4. Housing benefits;

5. Child care services;

6. Energy assistance, such as the Low Income Home Energy

Assistance Program (LIHEAP);

7. Emergency disaster relief;

8. Foster care and adoption assistance;

9. Educational assistance, including benefits under the Head

Start Act and aid for elementary, secondary, or higher education;

10. Job training programs; and

11. In-kind, community-based programs, services, or assistance

(such as soup kitchens, crisis counseling and intervention, and

short-term shelter).

State and local programs that are similar to the federal

programs listed above should also be excluded from consideration for

public charge purposes. Note that states may adopt different names

for the same or similar publicly funded programs. In California, for

example, Medicaid is called ``Medi-Cal'' and CHIP is called

``Healthy Families.'' It is the underlying nature of the program,

not the name adopted in a particular state, that determines whether

or not it should be considered for public charge purposes.

In addition, and consistent with existing Service practice, cash

payments that have been earned, such as Title II Social Security

benefits, government pensions, and veterans' benefits, among other

forms of earned benefits, do not support a public charge

determination.

7. Affidavit of Support

The new AOS form, Form I-864, asks whether the sponsor or a

member of the sponsor's household has received means-tested benefits

within the past 3 years. The purpose of this question is not to

determine whether the sponsor is or is likely to become a public

charge, but to ensure that the adjudicating officer has access to

all facts that may be relevant in determining whether the 125-

percent annual income test is met. Any cash benefits received by the

sponsor cannot be counted toward meeting the 125-percent income

threshold, but receipt of other means-tested benefits, such as

Medicaid, is not disqualifying for sponsorship purposes. As noted

above, public benefit programs are increasingly available to

families with incomes above 125 percent of the poverty line.

The regulations implementing the new AOS requirement are found

at 8 CFR part 213a. Separate guidance has been issued on

adjudicating applications including an AOS.

Continued Use of Form I-134

The use of the new AOS (Form I-864) is mandatory for those

categories of immigrants listed in section 212(a)(4)(C) and (D), and

a Service officer may not accept a Form I-134 in place of the new

AOS for these immigrants if the application was filed on or after

December 19, 1997. In those cases not governed by sections

212(a)(4)(C) and (D) and 213A (e.g., parolees, nonimmigrants, or

diversity immigrants) in which the Service has traditionally

accepted Form I-134, Service officers may continue to do so on a

discretionary basis. Use of Form I-361 will continue in cases

involving Amerasians under Public Law 97-361.

8. Naturalization

There is no public charge test for purposes of naturalization.

There are two narrow circumstances under which the public charge

issue can arise in a naturalization case. First, the alien's

admission for permanent residence may not have been ``lawful''

pursuant to section 318 because, at the time of admission or

adjustment, the alien was subject to exclusion as an alien likely to

become a public charge. This would generally occur only if the

Service can show that the alien withheld or misrepresented material

facts relating to the public charge issue at the time of admission

or adjustment. Secondly, the alien's initial admission may have been

lawful, but later the alien became deportable as a public charge,

under the test described in section 3, above. This would not be a

bar to naturalization unless the Service actually instituted

deportation proceedings against the alien. As a practical matter,

neither of these situations is likely to occur.

The Service has no authority to make the repayment of public

assistance a condition for granting naturalization, and officers

should not request proof of repayment from applicants in connection

with a naturalization adjudication.

9. Public Charge Bonds

Section 213 of the INA, Admission of Certain Aliens on Giving

Bond, was amended by IIRIRA only by including a parenthetical

reference to the new AOS prescribed in INA section 213A. Where

appropriate, officers may use the public charge bond option pursuant

to section 213 as has been done in the past.

10. Points of Contact

Questions concerning this memorandum should be referred to

Sophia Cox or Kevin Cummings, Headquarters Office of Adjudications,

at 202-514-4754, through appropriate channels.

[FR Doc. 99-13202 Filed 5-25-99; 8:45 am]

BILLING CODE 4410-10-M