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 in many cases be overcome. And some green card applicants, such as asylees and refugees, are not subject to the public charge rules.

WARNING: The description below reflects an updated set of DHS rules meant to go into effect October 15, 2019. However, a federal court has put a hold on the new rules, in response to a pending lawsuit. The court injunction affects only adjustment of status applicants (doing their entire application in the U.S.), not applicants coming via consular processing, who will need to abide by upcoming new State Department regulations that are expected to be much like what's described below.

Definition of “Public Charge”

A green card applicant may be found inadmissible as a likely public charge if it is more likely than not that, in the future, the person will depend on public benefits to meet basic needs, based on the totality of the person's circumstances, weighing various positive and negative factors.

When deciding whether a green card applicant is a likely public charge, immigration officials consider the following (per federal statute, at I.N.A. § 212(a)(4)(B)(i) or 8 U.S.C. § 1182(a)(4)(B)(i), as well as a final rule from the Trump Administration, going into effect on October 15, 2019):

• age (with being younger than 18 or older than 61 seen as negative factors)

• health (as indicated by the medical report required when applying for lawful permanent residence)

• family status and household size (most importantly, whether the immigrant applicant has children or other family members to support)

• household income and assets, as shown on tax transcripts (excluding any money from illegal activities)

• access to support from working family members or friends, most importantly the U.S. petitioner/sponsor

• employment history and prospects (including education and work skills, with lack of recent employment seen as negatives), and

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

Immigration officials will consider the applicant's receipt of most cash as well as some non-cash or “special-purpose” cash benefits in the U.S., such as Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Supplemental Nutrition Assistance Program (SNAP) or food stamps; Medicaid (except for pregnant women or people under age 21); and housing vouchers and other rental or housing subsidies. (Note: In some cases, these will be considered only if the benefits were received after the new Trump Administration rules went into effect in October, 2019.)

Specifically, U.S. immigration authorities will deem a “public charge” to be someone who is currently receiving public benefits or been approved to do so, or has received more than 12 months' worth of one or more designated public benefits within any 36-month period. But they can also consider receipt of benefits less than that, as part of assessing the "totality of circumstances."

Immigration officials should, however, 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) as well as school lunch programs, Head Start, the Children's Health Insurance Program (CHIP), Pell grants and other student aid, job training, tribal benefits, Disaster Supplemental Nutrition Assistance (D-SNAP) and other emergency relief, Social Security Disability Insurance (SSDI), and Medicare Part D.

Immigrants Not Subject to Public Charge Rules

Many 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 and crime victims aiding U.S. law enforcement (with T visas or U visas)

• Amerasian special immigrants

• 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 (seeking green cards based on having lived in the U.S. since before January 1, 1972)

• Afghan and Iraqi interpreters or employees of the U.S. government

• Parolees from Vietnam, Cambodia, and Laos (see 8 C.F.R. § 245.21)

• surviving spouses, children, and parents of U.S. military members, applying for green cards as a posthumous benefit

• VAWA self-petitioners

• special immigrant juveniles

• people who were, at the time of receiving public benefits, enlisted in the U.S. Armed Forces, (active duty or Ready Reserve) or their spouse or children, and
• children of U.S. citizens (adopted or biological) who, upon receiving U.S. permanent residence and subsequently living in the legal and physical custody of their U.S. citizen parent will automatically acquire U.S. citizenship.

(See 8 C.F.R. § 212.23(a) for complete government regulations on this; and notice that the list also includes various types of nonimmigrants (entering the U.S. on temporary visas), not mentioned on the above list, which focuses on types of green card applicants.)

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, and based on the "totality of circumstances" test, there are exceptions.

To deal with this, USCIS will (per 2019 regulations at 8 CFR § 213.1) allow immigrants to post a public charge bond of up to $8,100. This amount will be annually adjusted for inflation based on the Consumer Price Index.

Factors That Might Lead to a Likely Public Charge Finding

A green card applicant who exhibits any of the following characteristics is particularly 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 one or more of these facts apply to your case, or you have other cause for concern based on the above discussion, you should talk to a well-qualified immigration attorney.

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, job offers, and evidence of having private health insurance. 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.