Practice Areas

How is a Public Charge Determination Made?

If you received public benefits in the past, be aware that receipt of cash assistance is only one factor in a public charge determination. The USCIS or State Department can make a public charge finding only after considering all of the other factors under what is known as the "totality-of-the-circumstances" test. This includes the immigrant's age, health, family status, assets, resources, financial status, education, skills, and whether an affidavit of support exists, among other factors. The guidance also mandates that every order denying admission or adjustment of status must reflect consideration of each of the factors that are part of the totality-of-the-circumstances standard and specifically articulate the reasons for the denial. This requirement is especially important because it should prevent immigration officers from issuing summary denials based only on an immigrant's receipt of cash assistance.

Where an immigrant has received cash assistance, the amount of benefits received, the duration of benefit receipt, and the length of time that has passed since the immigrant relied upon cash assistance all are factors that may diminish the significance of benefit receipt for public charge purposes. The guidance includes a number of examples where, under the totality-of-the-circumstances test, other factors weigh against a public charge finding in spite of past or current receipt of cash assistance:

• The guidance approvingly cites an earlier Attorney General ruling 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."
  
  
• "The negative implication of past receipt of . . . benefits . . . may be overcome by positive factors in the alien's case demonstrating an ability to become self-supporting. For instance, a work-authorized alien who has current full-time employment or an affidavit of support should be found admissible despite past receipt of cash public benefits, unless there are other adverse factors in the case."

In general, past receipt of cash assistance is less likely to result in a public charge finding than current receipt of assistance. Current receipt of cash assistance does not automatically result in a public charge finding. The guidance notes 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." Both current and past receipt of cash assistance are only one factor among many that must be considered under the totality-of-the-circumstances test in determining whether an immigrant is likely to become primarily dependent on the government for subsistence.