Practice Areas

What is and what is not a Public Charge?

In May 1999, the Immigration and Naturalization Service issued important new guidance that narrowly limits the situations in which receipt of public benefits is relevant to a "public charge" finding. Under the guidance, the receipt of any non-cash benefit, with the sole exception of institutionalization for long-term care at government expense, is never a factor in a public charge determination. Thus, immigrants can accept Medicaid, food stamps, WIC, housing benefits, child care subsidies or other non-cash benefits without endangering their immigration status.

A "public charge" is an immigrant who is likely to become "primarily dependent on the government for subsistence." Under the new guidance, the only types of public benefits relevant to a public charge determination are "public cash assistance for income maintenance" and "institutionalization for long-term care at government expense." No other public benefits are relevant to a public charge determination. The guidance explicitly directs INS officers to place no weight on the receipt of non-cash public benefits (other than institutionalization for long-term care).

Although the INS is careful to note that providing an exhaustive list of non-cash benefits is not possible, the proposed rule does list several types of benefits that may not be considered for public charge purposes, including:

• Medicaid, Children's Health Insurance Program, and other health insurance and health services, other than support for long-term care;
• Food stamps, WIC, and other nutrition programs; (Food stamps are excluded from consideration even when they are provided in the form of cash.
• Housing benefits;
• Child care services;
• Energy assistance;
• Job training;
• Educational assistance; and,
• Similar state and local programs.