Who May Be Found Inadmissible and Denied a Green Card for Income Reasons, as a Likely Public Charge

One of the most common barriers to getting a green card is what's called "inadmissibility," as described in Top Reasons Your Green Card Might Be Denied. Some of the grounds of inadmissibility seem obvious and understandable. For example, it's easy to see why a record of having committed certain crimes can keep you from getting a green card (unless you qualify for a waiver, as described in When Is a Waiver of Inadmissibility Available for a Green Card Applicant?).

But other grounds of inadmissibility are less obvious, and easy to overlook. For example, you can be found inadmissible and denied a green card as a likely “public charge,” for which there is no waiver. (This is also the reason that U.S. Citizenship and Immigration Services (USCIS) will not grant fee waivers for Form I-485, the form used to adjust statue in the United States.)

However, as described below, the public charge ground of inadmissibility can often be overcome. And some green card applicants, such as asylees and refugees, are not subject to the public charge rules.

Definition of “Public Charge”

A green card applicant may be found inadmissible as a likely public charge if it seems probable that, in the future, the person will depend on public benefits to meet basic needs. When deciding whether a green card applicant is a likely public charge, immigration officials consider:

• age and health

• family size (i.e. whether the person has children or other family members to support)

• access to support from working family members or friends

• assets

• employability (education and work skills), and

• past or present receipt of cash assistance from the government.

Immigration officials are supposed to ignore the applicant's receipt of most non-cash or “special-purpose” cash benefits, such as food stamps, student aid, housing benefits, and job training. Immigration officials will also ignore the person's receipt of unemployment and health benefits (unless the health benefits involve long-term residence in a nursing home or mental institution).

Immigrants Not Subject to Public Charge Rules

Some types of green card applicants (usually “humanitarian” immigrants who are not “sponsored” by a U.S. citizen or lawful permanent resident relative) are not subject to the public charge rules. These include:

• asylees and refugees

• trafficking victims

• Lautenberg parolees and certain Hungarian, Indochinese, and Polish parolees

• Amerasian special immigrants (when first admitted to the United States)

• applicants for green cards under the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), Cuban Adjustment Act (if paroled into the U.S. as refugees prior to April 1, 1980), or the Haitian Refugee Immigration Fairness Act (HRIFA)

• registry applicants, and

• special immigrant juveniles.

How to Avoid a Public Charge-Based Green Card Denial

If you are applying for a green card based on a family relationship, the petitioner (your U.S. relative) is legally required to submit an Affidavit of Support on your behalf (Form I-864), promising to support you at a level that's higher than listed in the U.S. Poverty Guidelines. For information about this form, see Filling Out Form I-864, Affidavit of Support Under Section 213A of the Act.

In most cases, an approvable Affidavit of Support will be enough for the immigration authorities to decide that a green card applicant is not a likely public charge. However, as described later on in this article, there are exceptions.

Factors That Might Lead to a Likely Public Charge Finding

A green card applicant who exhibits any of the following characteristics is at risk for being labelled a likely public charge, even after submitting an approvable I-864 Affidavit of Support. The green card applicant:

• is very elderly

• has a serious disease or disability

• will be living with friends or relatives who are completely dependent on public benefits

• has never worked, or

• has a long history of receiving public benefits in his or her home country.

If none of these facts apply to your case, the affidavit of support alone should be enough to avoid a public charge finding.

If one or more of these facts apply to your case, you should talk to a well-qualified immigration attorney. And if your attorney agrees that a public charge finding is possible in your case, you might want to present extra evidence to show that you will be able to support yourself, such as copies of academic degrees, a resume, and job offers. If you will not be supporting yourself, you could present sworn statements from friends and relatives explaining how they will support you financially, or an additional I-864 (as described in, Strategies When an Immigrant's Sponsor's Income Is Too Low.)

Alternatively, you can wait, and submit no extra evidence regarding public charge issues with your green card application. If and when the immigration authorities raise "likely public charge" as an issue in your case, they will in all probability (though this is not guaranteed) give you an opportunity to present additional evidence showing that you will support yourself or be supported by others.