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, and how that law is being examined by the Trump Administration for possible change.
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?.
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.
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:
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.
And you’ll notice from the list above that only public benefits that you are expected to repay meet the qualification for this test.
Additionally, 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) AND do not create a legal debt.
So, the only sort of public assistance program that would create a legal debt would be some kind of state-run (not federal) general relief program, such as California’s Cash Assistance Program for Immigrants (CAPI).
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. Additionally, the applicable period for receiving the public benefits is only the first five years since your arrival in the United States; if you become reliant on an applicable public benefit after five years, the government cannot deport you.
Finally, receiving the public benefits alone cannot lead to deportation proceedings (unlike the inadmissibility test). 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.
So, even if you DID utilize a public charge-triggering public benefit, the benefits program would have to seek to collect from you, you would then have to refuse to repay the amounts you received, and the benefit program would have to file and win a lawsuit against you. 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.
As the deportability test shows, under current law, it is extremely difficult for the government to deport someone on the basis of being a public charge. However, the Trump administration might seek to change the current rules, making it easier to deport immigrants on this basis.
On May 3, 2019, Reuters leaked a report from the Department of Justice that discussed loosening the test for deportability on public charge grounds, which would make it easier for DHS to deport permanent residents. Under the draft regulation, immigrants who have used public benefits, such as cash welfare, food stamps, housing aid, or Medicaid, could be at risk for deportation.
The new regulations could also put asylees and refugees at risk, since (unlike most green card holders) they are eligible to receive many benefits within the first five years of their arrival in the U.S.
At this point in time, the new regulations are only a proposal, and are not yet in effect. Immigrant advocacy organizations have vowed to fight the proposed changes. Many other organizations, such as state aid agencies, are also opposed to the new regulations, as they believe they could have a chilling effect on immigrants and their children obtaining benefits, even if they are already eligible. However, even if the new rules are approved, they will likely not go into effect for 60 days, so immigrants should have some advance notice.
Finally, on August 14, 2019, DHS published new guidance in the Federal Register regarding sweeping changes to the public charge rules for inadmissibility. This new guidance is explicitly intended to deal with inadmissibility, and not deportability (“This rule does not interpret or change DHS’s implementation of the public charge ground of deportability.”) However, whether the new definitions and methods of analysis discussed in the new rules will ultimately impact public charge deportability remains to be seen. Nolo will continue to provide updates on any changes to the regulations.