Q. What is a public charge and when does it apply?
A. For purposes of determining inadmissibility, “public charge” means an individual 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 government expense.
A number of factors must be considered when making a determination that a person is likely to become a public charge.
Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge." Public charge does not apply in naturalization proceedings. If an individual is inadmissible, admission to the United States or adjustment of status is not granted.
Q. How is it determined whether someone is likely to become a public charge for admission or adjustment purposes?
A. Inadmissibility based on the public charge ground is determined by the totality of the circumstances. This means that the adjudicating officer must weigh both the positive and negative factors when determining the likelihood that someone might become a public charge. At a minimum, a U.S. Citizenship and Immigration Services (USCIS) officer must consider the following factors when making a public charge determination:
- Age
- Health
- Family status
- Assets
- Resources
- Financial status
- Education and skills
The officer may also consider any affidavit of support filed on behalf of the individual under Section 213A of the INA. Presence or absence of a single factor cannot be the sole criteria for determining inadmissibility as a public charge, (unless that factor is the absence or insufficiency of an affidavit of support when required by the laws and regulations governing a specific immigration benefit, such as certain family-based adjustment of status applications).
In assessing the totality of the circumstances, including the statutory factors above, an officer may consider the individual’s receipt of certain publicly funded benefits. Not all publicly funded benefits are relevant to deciding whether someone is likely to become a public charge. When determining whether someone is likely to become a public charge, USCIS will consider whether the individual 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 government expense. Short-term institutionalization for rehabilitation is not subject to public charge consideration under existing field guidance. Non-cash benefits that USCIS does not consider are discussed in greater detail below.
Q. What publicly funded benefits may be considered for public charge purposes?
A. Cash assistance for income maintenance and institutionalization for long-term care at government expense may be considered for public charge purposes. However, receipt of such benefits must still be considered in the context of the totality of the circumstances before a person will be deemed inadmissible on public charge grounds.
Public benefits that are received by one member of a family are also not attributed to other family members for public charge purposes unless the cash benefits amount to the sole support of the family.
Acceptance of the following types of assistance may lead to the determination that the individual is likely to become a public charge:
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) (Note: Non cash benefits under TANF such as subsidized child care or transit subsidies cannot be considered and non-recurrent cash payments for crisis situations cannot be considered for evidence of public charge)
- 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). (Note: costs of incarceration for prison are not considered for public charge determinations)
This is not an exhaustive list of the types of cash benefits that could lead to a determination that a person is likely to become primarily dependent on the government for subsistence, and thus, a public charge. Receipt of any such cash benefits not listed above will continue to be assessed under the “totality of the circumstances” analysis described above.
Q. What publicly funded benefits may not be considered for public charge purposes?
A. Non-cash benefits (other than institutionalization for long-term care) are generally not taken into account for purposes of a public charge determination.
Special-purpose cash assistance is also generally not taken into account for purposes of public charge determination.
Non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination. Non-cash or special purpose cash benefits that are not considered for public charge purposes 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)
State and local programs that are similar to the federal programs listed above are also generally not considered for public charge purposes. Please be aware that states may adopt different names for the same or similar publicly funded programs. It is the underlying nature of the program, not the name adopted in a particular state, which determines whether or not it should be considered for public charge purposes. In California, for example, Medicaid is called "Medi-Cal" and CHIP is called "Healthy Families." These benefits are not considered for public charge purposes.
In addition, and consistent with existing 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. Unemployment compensation is also not considered for public charge purposes.
Q. Am I required to file an affidavit of support?
A. Form I-864, Affidavit of Support, is a form that a qualified individual (a sponsor) files on your behalf when you are applying for a green card or immigrant visa under certain family-related provisions. The purpose of the form is to show that you have the financial means to live in the United States without needing welfare or financial benefits from the U.S. government. The law requires that the sponsor demonstrate that he or she is able to assist you financially. The sponsor must show that he or she has an annual income of not less than 125 percent of the federal poverty level. The federal poverty guidelines are set once a year, and can be found on Form I-864P, Poverty Guidelines.
The following individuals are required to file an Affidavit of Support completed by their sponsor:
- Immediate relatives of U.S. citizens (including orphans)
- All family based preference categories:
- First Preference: Unmarried, adult sons and daughters of U.S. citizens (Adult means 21 years of age or older)
- Second Preference: Spouses of permanent residents and the unmarried sons and daughters (regardless of age) of permanent residents and their unmarried children
- Third Preference: Married sons and daughters of U.S. citizens, their spouses and their unmarried minor children
- Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their unmarried minor children
- Employment based immigrants who will work for a relative or for a firm in which a U.S. citizen or a permanent resident relative holds a 5 percent or more ownership interest
Failure to file a qualifying Affidavit of Support showing sufficient income levels, when required, makes you inadmissible under Section 212(a)(4) of the INA. Note: Individuals whom the USCIS has approved as self-petitioning widows or widowers or battered spouses and children are exempt from filing an Affidavit of Support but must still file Form I-864W, Intending Immigrant’s Affidavit of Support Exemption.
For more information, see the “Affidavit of Support” link to the left.
Q. Does public charge apply to me?
A. For benefits adjudicated by USCIS, whether a person is likely to become a public charge is usually considered when someone is trying to become a permanent resident (get a green card). It is also considered when someone applies for certain non-immigrant or other temporary benefits, for example by extending non-immigrant status within the United States.
There are certain groups of people who are either exempt from public charge, or may get a waiver for public charge when applying for a green card or other benefits with USCIS. These include:
Refugees
Asylum applicants
Refugees and asylees applying for adjustment to permanent resident status
Amerasian Immigrants (for their initial admission)
Individuals granted relief under the Cuban Adjustment Act (CAA)
Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA)
Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA)
Individuals applying for a T Visa
Individuals applying for a U Visa
Individuals who possess a T visa and are trying to become a permanent resident (get a green card)
Individuals who possess a U visa and are trying to become a permanent resident (get a green card)
Applicants for Temporary Protected Status (TPS)
Certain applicants under the LIFE Act Provisions
Q. What if I am in removal proceedings or at a Port of Entry?
A. For information on public charge determinations in removal proceedings and at ports of entry, refer to the complete Field Guidance for Deportability and Inadmissibility on Public Charge Grounds; 64 FR 28689 (May 26, 1999) (see “Guidance on Public Charge” link to the right).
Q. How can I learn more about public charge?
A. For the complete published policy on public charge refer to the Published Policy on Public Charge: INA Sections 212(a)(4) and 237(a)(5) (see “Guidance on Public Charge” link to the right).
