[Federal Register Volume 64, Number 101 (Wednesday, May 26, 1999)]
[Notices]
[Pages 28689-28693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13202]



  Federal Register / Vol. 64, No. 101 / Wednesday, March 26, 1999 / 
Notices  

[[Page 28689]]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \2\ See Section 4 below on categories of aliens who are not 
subject to public charge determinations.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \5\ Matter of Martinez-Lopez, 10 I&N 409, 421-422 (AG, Jan. 6, 
1964).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

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

    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).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    (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.
---------------------------------------------------------------------------

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

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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

    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.
---------------------------------------------------------------------------

    \15\ 9 FAM Sec. 40.41 n.9.1
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \18\ Costs for imprisonments for conviction of a crime are not a 
basis for a public charge determination.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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