Can a Green Card Holder Be Deported for Receiving Public Benefits?

Whether it is risky for green card holders to sign up for public benefits, such as food stamps, cash assistance, housing vouchers, or Medicaid, is a source of significant confusion. Receiving public benefits could be necessary in order to ensure the health and well-being of your family. This has become a particular issue since the start of the coronavirus (COVID-19) pandemic, when health and financial issues are of major concern to many Americans.

An overreliance on public benefits could, in rare situations, put a lawful permanent resident at risk of being declared a "public charge" by U.S. immigration authorities. That could potentially have serious consequences for one's status in the United States.

This article discusses which public benefits, if any, can put a green card holder (lawful permanent resident) at risk for deportation, the current test for deportability.

For a discussion of whether receiving public benefits will make you inadmissible (unable to return) after a trip outside the U.S., see If You've Received Public Benefits, Leaving U.S. Risks Being Refused Reentry. For a more in-depth analysis on which types of public benefit you might be eligible for and which could make you inadmissible, see: What Public Benefits Can a Green Card Holder Receive?.

Can Receiving Public Benefits Lead to Deportation?

The federal Immigration and Nationality Act (I.N.A.) states that "any alien who, within five years after the date of entry; has become a public charge from causes not affirmatively shown to have arisen since entry is deportable." (See I.N.A. § 237(a)(5).).

That sounds alarming, but in practice, whether a public charge determination can lead to deportation is complex. While deportation is technically possible, the test for deportability on the basis of a public charge determination is extremely strict, and deportation on this basis has been rare in the past, almost nonexistent.

What Is the Current Public Charge Test for Deportability?

The current version of the public charge test for deportability has been in effect since 1999. Under field guidance issued by the U.S. Department of Justice, you risk being declared a public charge and having to face deportation only if ALL of the following occur or are true:

• You received cash benefits or long-term institutional care from a government agency in the U.S. for reasons that existed before you entered the U.S.
• You received cash benefits or long-term care less than five years after entering the U.S.
• You or your U.S. sponsor have a legal debt to the government agency that provided the cash or long-term care.
• You or your sponsor received a demand for repayment from the government within five years of entering the U.S.
• You or your sponsor refused to repay the benefits, and
• The government filed a lawsuit against you and won in court.

As this test shows, merely receiving public benefits does NOT make someone eligible for deportation on the basis of being a public charge. Many public benefits, including non-cash benefits like food stamps, emergency assistance, and federal loans, do not even trigger a public charge analysis for either inadmissibility or deportability purposes.

The Past Five Years Requirement

You'll notice that the deportation test looks only at what someone received within the first five years of entering the United States. That cuts down the possibilities, because many of the benefits that could trigger a public charge analysis (such as Supplemental Security Income and Temporary Assistance to Needy Families) are typically not available to immigrants for a significant period of time (normally more than five years).

If you become reliant on an applicable public benefit after five years, the government cannot deport you on this basis

The Repayment Requirement

You'll also notice from the list above that only public benefits that you are expected to repay meet the qualification for this test. Receiving the public benefits alone cannot lead to deportation proceedings (unlike with the inadmissibility test).

As a practical matter, most federal programs do not create a legal dept. The only sort of program that would is likely to be some kind of state-run (not federal) general relief program, such as California's Cash Assistance Program for Immigrants (CAPI).

Also, before DHS can deport you, it must prove that you received a demand for repayment, you refused to repay the amount you received in benefits, and you received a judgment against you in court for the receipt of benefits. This is extremely burdensome for DHS to prove and covers only a narrow set of circumstances.

Moreover, many state aid agencies are reluctant to file lawsuits, for a variety of reasons. That is why deportation on public charge grounds is virtually nonexistent under the current system.

The Requirement to Focus on Past Entry While Likely to Become a Public Charge

Furthermore (and unlike the public charge test for inadmissibility), the public charge test for deportability looks to the past. In other words, the Department of Homeland Security (DHS) can look only at whether the permanent resident was likely to become a public charge at the time he or she entered the United States.

For example, if you were disabled to the point of being unable to work prior to coming to the U.S. and relied on cash benefits within the first five years of your stay, you could technically be at risk of deportation.

But, if you became disabled and reliant upon public benefits or long-term care after entering the U.S., for example because you came down with COVID-19, you are not deportable on public charge grounds, even if it seems likely that you won't be able to support yourself in the future.