The Public Charge Ground of Inadmissibility

By: Sara Cross

Since 2018, there has been a lot of news media coverage about the “public charge” ground of inadmissibility in immigration and the Trump administration’s proposed changes to how applicants are evaluated when applying for immigration benefits. Although these rule changes were proposed in October 2018, they have not been codified yet into new regulations for the U.S. Immigration and Citizenship Service (“USCIS”). However, examining how the public charge of inadmissibility is evaluated and applied against applicants is highly relevant, as it has become a factor in the denial of an increasing number of recent cases.

There are two primary groups of immigrants subject to the public charge of inadmissibility: those seeking to adjust their status to a legal permanent resident in the United States and those seeking an immigrant visa through a United States Embassy or Consulate overseas. The rules for evaluating an applicant in each group differ slightly as USCIS is responsible for evaluating the first group already present in the U.S., and the Department of State is responsible for evaluating the second group outside of the country.

Currently, in immigration law, a “public charge” is defined as a person “who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at the government’s expense.”[1] Under the current definition, the programs that are considered cash assistance for income maintenance are Supplemental Security Income (“SSI”), Temporary Assistance for Needy Families (“TANF”), and “general assistance” cash programs at the state and local level. Institutionalized for long-term care at the government’s expense means confinement to a nursing home or mental health institution paid for by Medicaid.

For decades, a person seeking admission to the U.S. could avoid a public charge finding by submitting an affidavit of support from one or more sponsors, showing sufficient income and assets from the sponsor(s) to enable them to financially support the applicant if it should become necessary. Historically, demonstrated income and assets 125% above the yearly Federal Poverty Guidelines has been considered sufficient. However, under the new proposed policy for USCIS and in already implemented rules from the Department of State, the affidavit of support is only one of many factors that is considered in the “totality of the circumstances” test. The “totality of the circumstances” test requires adjudicators to consider many factors cumulatively, such as a person’s age, health, family status, assets resources, financial status, education and skills in addition to the affidavit of support and weigh the likelihood that the specific person in their specific set of circumstances could become a public charge in the future.

The Board of Immigration Appeals (“BIA”) and Federal courts has held that likelihood of becoming a public charge in the future means a more substantial showing than simply the mere possibility that person could become a public charge in the future. In order to support a finding that an applicant is likely to become a public charge, the official must base the conclusion on specific evidence in the record and on the actual circumstances of the applicant at the time of review. The finding cannot be based on conditions or circumstances beyond the control of the applicant that would temporarily prevent them from joining the workforce. To this end, officials can look at factors that are specific to each applicant, such as their work history and whether they will continue to have the ability to work in the coming years, whether they have obtained public benefits in the past and if so, for how long. An applicant’s health can be considered, as health issues might affect future employment, medical expenses, and the ability for the applicant to pay for themselves or their dependents. Another factor to consider is a family’s size, as the number of dependents that may need to be supported will also be taken into account. The applicant’s and their sponsor’s additional financial resources and assets will also be taken into consideration, as this may supplement any deficiencies in income or other negative factors.

It is important that adjudicators take the applicants’ total circumstances under consideration and balance the equities in a reasonable and forward-looking manner in each case. That is why it is important to hire a knowledgeable immigration attorney who can evaluate a person’s specific and unique circumstances and determine the best way to proceed when assisting them in obtaining permanent resident status in the U.S.