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 status in the United States.)

However, as described below, the public charge ground of inadmissibility is possible to overcome. Also, some categories of green card applicants, such as asylees and refugees, are not subject to the public charge rules, as discussed below.

Finally, this article applies only to people getting their first green card, not to those going from conditional to permanent residence or simply renewing an existing green card.

Definition of "Public Charge" in U.S. Immigration Law

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. Of course, immigration officials can't predict the future, but they're expected to look at the totality of the applicant's circumstances and make a determination as to the person's financial responsibility.

The main factors to consider include the following, per federal statute at I.N.A. § 212(a)(4)(B)(i) or 8 U.S.C. § 1182(a)(4)(B)(i), and the government's 1999 Interim Field Guidance.

• age
• health
• family status
• assets
• resources and financial status
• education, and
• skills.

Past receipt of cash income-maintenance benefits does not automatically make an applicant inadmissible as a likely public charge, but such history can be taken into account in this prospective analysis. It can be overcome by, for example, showing that the applicant has full-time, lawful employment.

List of Public Benefit Programs That Are Considered a Potential Bar to Immigrating

 Having received benefits under any of the following programs could negatively impact your application for a U.S. visa or green card:

• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF) cash assistance
• State and local cash assistance programs that provide benefits for income maintenance (often called ‘‘General Assistance'' programs), and
• Programs (including Medicaid) supporting aliens who are institutionalized for long-term care e.g., in a nursing home or mental health institution).

The Trump administration attempted to expand this list with new regulations, but U.S. federal courts put a stop to that.

List of Public Benefits That Will Not Make an Applicant for U.S. Immigration Inadmissible

The following types of non-cash programs are not considered as factors in deciding who is a public charge, and will therefore not impact your U.S. immigration application:

• Medicaid and other health insurance and health services, other than support for long-term institutional care.
• Children's Health Insurance Program (CHIP).
• Nutrition and supplemental or emergency food assistance programs, such school meals, Food Stamps, and the Special Supplemental Nutrition Program for Women, Infants and Children (WIC).
• Housing benefits.
• Child care services.
• Energy assistance.
• Emergency disaster relief.
• Foster care and adoption assistance.

IMPORTANT NOTE REGARDING CORONAVIRUS: USCIS states that people with symptoms (fever, cough, shortness of breath) should "seek necessary medical treatment or preventive services," and that this "will not negatively affect any alien as part of a future Public Charge analysis."

Immigrants Who Aren't Subject to Public Charge Rules

Most immigrants will have to clear the public charge hurdle, whether their application is based on a family relationship or employment. However, many types of green card applicants are not subject to the public charge rules, including:

• asylees and refugees, including when adjusting status to permanent residence
• applicants for Temporary Protected Status (TPS)
• trafficking victims and crime victims aiding U.S. law enforcement (with T visas or U visas), both when applying for the visas and when adjusting status to permanent residence
• 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), the Haitian Refugee Immigration Fairness Act (HRIFA), or the Liberian Refugee Immigration Fairness Act (LRIF)
• 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, or who are seeking VAWA-based cancellation of removal or suspension of deportation or adjustment of status
• applicants for cancellation of removal or suspension of deportation
• special immigrant juveniles, whether during their initial application for status or when adjusting status to permanent residence
• 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.

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. (See Filling Out Form I-864, Affidavit of Support Under Section 213A of the Act) and consider filing an additional I-864, as described in, Strategies When an Immigrant's Sponsor's Income Is Too Low.)

An approvable Affidavit of Support can be enough for U.S. immigration authorities to decide that a green card applicant is not a likely public charge.

Still, both positive and negative factors will be considered in your application for a U.S. green card. The more an applicant can do to show possession of valuable assets and job prospects, the better. You can, for example, assist the immigration officers in making their determination by submitting a letter of explanation for any negative factors and highlighting any positive ones that your paperwork doesn't fully show.

In fact, USCIS specifically recommended during the COVID-19 pandemic that applicants who live and work in an area where social distancing, quarantine, or other such restrictions are in place, or whose employer, school, or university has shut down operations for disease-prevention purposes, include such a statement. Make sure to explain how you've been affected, and why you've possibly had to turn to public benefits. You'd want to attach any relevant supporting documentation, such as your employer's notification that you'd been put on unpaid leave or laid off.

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, particularly if there's no source of health insurance
• 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.

Getting Legal Help

If one or more of these factors described above apply to your case, or you have other cause for concern based on this discussion, you should talk to a well-qualified, consult an experienced immigration attorney.