What Public Benefits Foreign Nationals and Immigrants May Accept?

Many immigrants or prospective immigrants have stayed away from accepting any public benefits such as medical, child care services, foster care, food stamps, etc. for fear that it is illegal and INS would deport them, or they could not become a permanent residents if they accepted any benefits.

The purpose of this article is to educate the public as to what benefits are available to foreign nationals and immigrants that have been here less than 5 years.

Recently, the INS Headquarters issued a landmark field guidance directive to its field officers as to what benefits immigrants and undocumented immigrants may receive without a public charge determination. When a foreign national is seeking to immigrate to the U.S., and/or become an lawful permanent resident, or when the INS is considering deportation, INS officers must now apply a new test to determine if the person is likely to become a public charge or has become a public charge. This test is called the “totality of the circumstances” test, which means INS must consider the individual age, health, family status, assets, resources, financial status, education and skills when making a public charge inadmissibility determination.

The test is to be a “prospective evaluation.” What this means is, whether the individual has accepted benefits in the past cannot be the sole factor for determination if the applicant is likely to become a public charge.

Also, now only certain benefits are relevant to public charge consideration. First, non-cash benefits may be accepted except for long term instutionalized care. Second, special purpose cash assistance not intended for income maintenance is also acceptable.

The following non-cash or special purpose cash assistance is not considered relevant to public charge determination: Medicaid, other health insurance, health services, including public assistance for immunization, testing and treatment of symptoms of communicable diseases, use of health care clinics, short-term rehabilitation services and emergency medical services. Long term institutionalized care, however, is considered relevant.

Other allowable benefits include: Children’s Health INS Program (CHIP), nutritional programs, including food stamps and WIC, housing benefits, child care services, energy assistance, i.e. Low Income Home Energy Assistance Program (LIHEAP), emergency disaster relief, foster care and adoption assistance, job training, educational assistance and “in-kind” assistance like soup kitchens, crisis counseling and short term shelter.

Similarly, California Medicaid and Healthy Families are acceptable. Title 11 Social Security benefits, government pensions and veteran’s benefits, some forms of cash assistance, such as energy assistance, childcare assistance, temporary assistance for needy families (TANF) may also be accepted, but must be limited.

Please be aware that no Consular or INS officer may deny an application based solely upon the applicant’s receipt of public benefit. Nor can permanent resident aliens be deported as a public charge simply because they accept public benefits.

I have heard some INS and Consular officers in the past have required repayment of benefits in order to adjust status or immigrate to the United States. Such a policy is utterly improper. If you have received public assistance in the past. I recommend that you obtain an experienced immigration lawyer familiar with these rules to assist you with the U.S. Consul or at the Immigration & Naturalization Service.