The receipt of public benefits in the United States can potentially be grounds for a person to be denied a US green card through adjustment of status or an immigrant visa by the immigration authorities. Under Section 212(a)(4) of the Immigration and Nationality Act (the primary source of US immigration law), a person can't adjust status (which is necessary to get a green card if they're already in the US) in the United States or get an immigrant visa (which is necessary if the person is abroad; it leads to a green card) if they're likely in the eyes of US immigration authorities to become a "public charge." It's unlikely, however,that the short-term receipt of limited public funds will lead to a finding that a person is likely to become a public charge and thus to a denial of a green card or immigrant visa, especially where the other factors considered by the immigration authorities don't suggest that this will be the case for the individual at issue. Persons who think the public charge provision of US immigration law may be an issue for them, or who have been denied a green card or immigrant visa because of it, should talk to an immigration attorney for advice. An experienced immigration lawyer can help a person understand their options and advise them how best to go about pursuing their US immigration goals. A
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What does it mean to be a public charge under US immigration law?
A person who is considered by the US immigration authorities to be likely to become a public charge can't get an immigrant visa or adjust status in the United States, meaning they can't get a green card. So what's the definition, per US immigration law, of a public charge? It's someone whom the government thinks will become primarily dependent on the US government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance, or (ii) institutionalization at the government's expense for long-term care. The latter would include someone who's, for example, elderly and sick and is likely going to be staying long-term in a hospital or care facility but who won't be able to afford it, meaning the US government will have to pick up the tab. This applies to Medicare where it's used for this purpose – it can count against a person applying for a green card or immigrant visa. The former concerns people who have to rely on government support to live, but crucially, it only applies to "public cash assistance," which has a very limited definition. The main types of assistance that count for US immigration purposes, or more specifically for the public charge provision, include Temporary Assistance for Needy Families (TANF) cash assistance and General Assistance programs, i.e., state and local programs that provide benefits for the purpose of income maintenance. Thankfully for persons who've received a bit of help in the past from the government, the following do not count against a person who's applying for a green card through adjustment of status or who's seeking an immigrant visa:
- Housing benefits;
- Medicaid and other health insurance programs, other than where it's used for long-term institutional care;
- Child care services;
- The Children's Health Insurance Program (CHIP);
- Job training programs;
- Emergency disaster relief benefits;
- Educational assistance, including Head Start benefits;
- Foster care and adoption assistance;
- Benefits from community-based programs, like soup-kitchens, crisis counseling and intervention, as well as short-term shelter
Whether a person has and is likely to receive public benefits is only part of the equation in determining whether they're likely to be a public charge, which would make them unable to obtain an immigrant visa or a green card. The immigration authorities, in making this decision, will also look at the person's:
- Age. Older persons are at a disadvantage, as it's less likely they'll be able to work to support themselves, and they're also likely to have more medical expenses.
- Health. A person who's already sick, especially with a serious chronic illness, may be cause for concern.
- Resources, assets and general financial status. A person who has money or items worth money is more likely to be able to support his/herself, and is therefore less likely to become a public charge.
- Education and skills. The idea is that a highly-educated, highly-skilled person can probably find a job and thereby support his/herself.
The person making a judgment on the public charge provision of US immigration law, whether a US Citizenship and Immigration Services (USCIS) officer in the United States or a US Department of State consular officer at a US embassy or consulate abroad, is instructed to not focus too much on any one factor, but rather to take a "totality of the circumstances" approach. In fact, no single factor of the four listed above can by itself be grounds for denying a green card or immigrant visa application – more than one of those factors has to cut against an applicant for an immigration officer or consular officer to rule that the individual is likely to become a public charge.
An older person who's already in poor health and who doesn't have much education or a developed skill-set and who doesn't have much money at all or any valuable assets could well be denied a green card or immigrant visa under the public charge provision of US immigration law. It would be even more likely if such a person had received public benefits in the past. But this is of course an extreme scenario; most persons applying for a green card through adjustment of status or for an immigrant visa don't have all of those factors weighing against them. The bottom line is that it's very unlikely a green card or immigrant visa will be denied to a person who has received public benefits unless several other factors also work against them. This is especially true considering that the affidavit of support, Form I-864, required for most persons seeking a green card or immigrant visa, can help to allay public charge concerns. If someone else is promising to look after an applicant financially it works in the applicant's favor, especially if the person submitting the affidavit is well-off.
It's important to note that the public charge provision doesn't apply to certain persons, including refugees and asylum applicants.
You should speak with an experienced immigration attorney if you'd like to know more about the public charge provision of US immigration law. Also, persons should inform an immigration lawyer of immigration problems they're facing; an attorney who's an expert in immigration matters can give you the kind of help you need to put you in the best position possible to meet your immigration needs. A Heartland Immigration Dallas immigration lawyer will be happy to speak with you. We serve clients across the country and around the globe, and offer a free immigration consultation. Contact us by e-mail to talk to a Dallas green card lawyer or give us a call: