Chapter 10 - Public Benefits
ALERT: This policy guidance is effective on February 24, 2020, and will apply to all applicants and petitioners filing applications and petitions for adjustment of status, extension of stay, and change of status, except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy, including the 1999 Interim Field Guidance (PDF) and AFM Ch. 61.1. For additional information, see Public Charge Inadmissibility Determinations in Illinois. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Inadmissibility on Public Charge Grounds final rule. For more information about the classes of aliens who are exempt from the final rule, click here.
As part of the assets, resources, and financial status factor, public benefits are considered in the following ways:
Whether the applicant has applied for public benefits;
Whether the applicant has been certified or approved to receive public benefits;
Whether the applicant has received public benefits; and
If the applicant submits relevant evidence, whether he or she is eligible for the public benefits based on income or immigration status.
As part of the public charge inadmissibility determination, USCIS considers both cash and noncash benefits including:
Any federal, state, local, or tribal cash assistance for income maintenance such as:
Supplemental Security Income (SSI);
Federal, state, or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names);
Supplemental Nutrition Assistance Program (SNAP);
Section 8 Housing Assistance under the Housing Choice Voucher Program;
Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); and
Housing under the Housing Act of 1937.
Federal Public Benefits Used Under other Names
Some federal public benefits, as listed above, may be listed under other names depending on the state. These federal public benefits are considered in the public charge inadmissibility determination.
Cal-Fresh is the federally funded SNAP program under the State of California.
Medi-Cal is how the State of California delivers Medicaid to its residents.
However, a state medical insurance program, funded exclusively by the state, is not included in the definition of public benefit and is not considered as a public benefit in the public charge inadmissibility determination.
For example, some Medi-Cal services are provided to aliens under a state-only authority at no expense to the federal government.
If Medi-Cal is provided to the alien under a state-only authority at no expense to the federal government, it is not considered in the public charge inadmissibility determination.
To the extent that states give the same name to their Federal Medicaid program and the state-only funded health insurance program, aliens are not required to report the receipt of the state-only funded health insurance. However, if Medicaid is listed on the Form I-944 as a received public benefit receipt, it is the burden of the applicant to provide information and documentation that the health insurance is state funded only. USCIS assumes that any Medicaid identified on the Form I-944 is federally-funded Medicaid.
In addition to the cash benefits for income maintenance identified in the rule (SSI, TANF and GA), USCIS considers any other federal, state, and local tribal cash assistance for income maintenance (other than tax credits).
In order to be considered a cash assistance for income maintenance, it must be:
Cash or cash equivalent (such as a debit card or check);
For a non-specific purpose in which the cash or cash equivalent may be used for food and nutrition, housing, or healthcare;
Means-tested (requirement based on income threshold); and
Not otherwise excluded under the rule or this chapter.
The cash benefit is considered even if the public benefit was only state-funded.
Cash assistance for income maintenance is considered a public benefit for purposes of the public charge inadmissibility determination even if the funding is provided by the state unless it is provided to persons not subject to public charge.
Examples of state, local, and tribal cash assistance that are considered for income maintenance for purposes of the public charge inadmissibility determination include, but are not limited to:
MA Economic Assistance including Transitional Aid to Families with Dependent Children (TAFDC), Emergency Aid to the Elderly, Disabled, and Children (EAEDC), and the State Supplement Program (SSP) (cash benefits);
WA Aged, Blind or Disabled Cash Assistance Program; WA Food Assistance Program for Legal Immigrants; WA Consolidated Emergency Assistance Program; WA Pregnant Women Assistance; WA Diversion Cash Assistance; and WA State Supplemental Payment.
Examples of federal, state, local, and tribal provided cash or cash equivalent benefits that are not considered cash assistance for income maintenance include, but are not limited to:
Cash benefits provided to persons not subject to the public charge ground of inadmissibility such as Refugee Cash Assistance;
Low Income Home Energy Assistance Program (LIHEAP) and other energy assistance programs that are directly paid to the creditor;
Weatherization Assistance Program (WAP);
CNMI Nutrition Assistance Program (NAP);
Transportation related assistance that is directly paid to the creditor;
Cash emergency disaster relief - Stafford Act disaster assistance including financial assistance provided to persons and households under the Federal Emergency Management Agency’s Individuals and Households Program and any comparable disaster assistance provided by State, local, or tribal governments; and
Any cash benefit provided by the Department of Veteran’s Affairs or other federal or state, local, or tribal benefit provided based on veteran status.
In addition, USCIS does not consider any tax-related cash benefit including:
Earned Income Tax Credit (EITC);
Additional Child Tax Credit (ACTC);
Premium Tax Credit (PTC);
Advance Payment of Premium Tax Credit (APTC); and
State, local, or tribal tax credits.
The following is a non-exhaustive list of public benefits that USCIS does not consider in the public charge inadmissibility determination as they are considered earned benefits:
Federal Old-Age, Survivors, and Disability Insurance Social Security benefits (SSDI);
Government (including federal and state) pension benefits and healthcare;
Federal and state disability insurance.
Other benefits not considered public benefits in the public charge inadmissibility determination include, but are not limited to:
Any services provided under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act);
Benefits under the Emergency Food Assistance Act (TEFAP);
Child and Adult Care Food Program (CACFP);
Food Distribution Program on Indian Reservations (FDPIR);
Short-term, non-cash, in-kind emergency disaster relief;
Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) provided by local communities or through public or private nonprofit organizations;
Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease;
Attending public school;
Benefits though school lunch or other supplemental nutrition programs including:
Summer Food Service program;
Child care related services including the Child Care and Development Block Grant Program (CCDBGP);
Special Supplemental Nutrition Program for Women, Infants, and Children (WIC);
Children’s Health Insurance Program (CHIP) and State Children’s Health Insurance Program (SCHIP);
Health Insurance through the Affordable Care Act;
Transportation vouchers or other non-cash transportation services;
Housing assistance under the McKinney-Vento Homeless Assistance Act;
Energy benefits such as the Low Income Home Energy Assistance Program (LIHEAP);
Educational benefits, including, but not limited to, benefits under the Head Start Act;
Student loans and home mortgage loan programs; and
Foster care and adoption benefits.
As there are multiple federal and state public benefits programs, USCIS is unable to list all programs not included within the public charge inadmissibility determination.
USCIS does not consider the following Medicaid benefits for purposes of the public charge inadmissibility determination:
Benefits paid for an emergency medical condition;
Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
School-based benefits provided to children who are at or below the oldest age of children eligible for secondary education as determined under State law;
Benefits received by an applicant under the age of 21; and
Benefits received by a pregnant applicant, including the period during the pregnancy and 60 days after the end of the pregnancy.
Emergency Medical Condition
"Emergency medical condition means a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part." States determine whether an illness or injury is an "emergency medical condition" and provide payment to the healthcare provider as appropriate. "Emergency medical services" are often involuntary and must be provided by doctors and hospitals regardless of the ability to pay, such as medical services at a hospital after a car accident.
The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) sets apart treatment for emergency medical conditions and makes funds available for the reimbursement of states regardless of an alien’s immigration status, and regardless of whether or not an alien would be subject to public charge ground of inadmissibility or other grounds of inadmissibility. Congress intended that PRWORA exceptions be applied generally, and treatment of emergency medical conditions in particular, be narrowly construed. To qualify for emergency medical condition exclusion, medical conditions must be of an emergency nature, such as:
Medical treatment administered in an emergency room;
Critical care unit or intensive care unit;
Pre-natal or delivery care assistance; or
Treatment for mental health in which the alien’s condition is such that he is a danger to himself or to others and has therefore been judged incompetent by a court of appropriate jurisdiction.
Depending on the state, and the medical condition, categorization as an "emergency medical condition" for purposes of Medicaid reimbursement may not be limited to hospital emergency room visits as defined by state case law. This may depend on the state which provided the emergency medical care. The applicants must provide information from the state indicating that the medical condition and use of the public benefit was for an emergency medical condition. The following are examples of how states have categorized conditions as emergency medical condition.
The following are examples of states determining whether the Medicaid is provided for an emergency medical condition:
Connecticut included leukemia that had “reached a crisis stage” and required “immediate medical treatment, without which the patient's physical well-being would likely be put in jeopardy or serious physical impairment or dysfunction would result.” However, permanent dialysis treatment was not an “emergency medical condition.”
North Carolina indicated that acute lymphocytic leukemia was not an “emergency medical condition” where there was nothing to indicate that the prolonged chemotherapy treatments must have been “immediate” to prevent placing the alien’s health in serious jeopardy, or causing serious impairment or dysfunction.
North Carolina included continued medical services for a cancer patient who underwent surgery after presenting at a hospital’s emergency room with weakness and numbness in the lower extremities.
In the Second Circuit, aliens who suffered serious traumatic head injuries initially satisfied the definition of emergency medical treatment, but the subsequent continuous and regimented care did not constitute emergency medical treatment pursuant to the statute.
Arizona included rehabilitative type ward after initial injury as an emergency medical condition.
Pennsylvania excluded care from rehabilitation and health care centers from being considered as part of emergency medical condition treatment even though the alien could eventually suffer another stroke or other medical problem; coverage was not being sought for an acute condition, but for long term or open-ended nursing care.
Individuals with Disabilities Education Act and School-Based Benefits
USCIS does not consider the Individuals with Disabilities Education Act (IDEA) and school-based benefits provided to children who are at or below the oldest age of children eligible for secondary education as determined under state law as public benefits in the public charge inadmissibility determination. Parents provide consent for school districts to release personally identifiable information to a state public insurance program (for example, Medicaid) for billing purposes. The applicant would submit such consent document or documentation from the school to identify the Medicaid benefit as provided under the IDEA or other school-based benefit.
Aliens under the Age of 21 and Pregnant Women
Congress, through Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA), expanded the Medicaid coverage for children and pregnant women who are lawfully residing in the United States, including those within their first 5 years of having certain legal status.
For public charge inadmissibility purposes, USCIS does not consider receipt of Medicaid by children under 21 and pregnant women during pregnancy and 60 days following pregnancy.
For public charge inadmissibility purposes, USCIS does not consider any public benefits received by:
Children of U.S. citizens whose lawful admission for permanent residence and subsequent residence in the legal and physical custody of their U.S. citizen parent will result automatically in the child's acquisition of citizenship, upon meeting the eligibility criteria for acquisition of citizenship; or
Children of U.S. citizens whose lawful admission for permanent residence will result automatically in the child's acquisition of citizenship upon finalization of adoption (if the child satisfies the requirements applicable to adopted children) in the United States by the U.S. citizen parent(s), upon meeting the eligibility criteria for acquisition of citizenship; or
Children, residing outside the United States, of U.S. citizens who are entering the United States for the purpose of attending an interview.
Alien military service members and their families are subject to the public charge inadmissibility determination. However, USCIS does not consider any public benefit received by a person enlisted in the U.S. armed forces, or serving in active duty or in the Ready Reserve component of the U.S. armed forces in the public charge inadmissibility determination. In addition, public benefits received by the spouse or child of a service member are not considered a public benefit in the public charge inadmissibility determination. This is applicable regardless of the service member’s immigration status.
USCIS does not consider any state funded non-cash benefit which may include health insurance, or social services programs as public benefits to be considered within the public charge inadmissibility determination. For example, the following public benefit would not be considered in the public charge inadmissibility determination:
9. [^] CAPI is designed to provide monthly cash benefits to aged, blind, and disabled non-citizens who are ineligible for SSI/SSA solely due to their immigrant status.
10. [^] FA provides cash assistance, under TANF, to eligible needy families that include a minor child living with a parent (including families where both parents are in the household) or a caretaker relative. SNA provides cash assistance to eligible needy persons and families who are not eligible for FA.
11. [^] Cash assistance is limited to a lifetime total of 48 months for adults.
12. [^] FITAP provides cash assistance to families with children when the financial resources of the family are insufficient to meet subsistence needs.
13. [^] The benefits include 2 monthly payments, health insurance, and employment support.
14. [^] This program is for people who are elderly, blind, or have a disability and need money, and the use of the cash assistance is not restricted. This program may also provide medical assistance, but only the cash assistance would be considered in the public charge inadmissibility determination.
15. [^] ABD is a state funded program that provides cash assistance and a referral to the Housing and Essential Needs (HEN) program to eligible low-income persons who are age 65 or older, blind, or determined likely to meet Supplemental Security Income (SSI) disability criteria based on an impairment(s) expected to last at least 12 consecutive months. The use of the cash assistance is not restricted.
16. [^] This is a cash program available to families or pregnant women who face an emergency and do not have the money to meet their basic needs, including families whose TANF cash assistance has been terminated. The use of the benefit is not restricted.
19. [^] See 83 FR 51114, 51174 (PDF) (Oct. 10, 2018) (proposed rule). See 84 FR 41292, 41379 (PDF) (Aug. 14, 2019) (final rule) (“Likewise, under this rule, DHS would consider such benefits as part of long-term institutionalization at Government expense and did not intend to consider other benefits that may be used such as Social Security retirement benefits, SSDI, Medicare or veteran’s benefits. Social Security retirement benefits, SSDI, Medicare and veteran’s benefits are considered earned benefits in that individuals pay into the programs as part of their employment and must work for a certain period of time before being eligible.”).
31. [^] Medicaid received by members of the U.S. armed forces and their spouses and children is also not considered. See Subsection 4, Benefits Received by Member of the U.S. Armed Forces and their Spouses and Children [8 USCIS-PM G.10(B)(4)].
37. [^] H.R. Rep. No. 104-469 (VI), at 263-64 (1996) (“This section provides that sections 601 and 602 shall not apply to the provision of emergency medical services, public health immunizations, short-term emergency relief, school lunch programs, child nutrition programs, and family violence services. Section 601 restricted unauthorized aliens from receiving public assistance, contracts, and licenses, and section 602 made unauthorized aliens ineligible for employment benefits.”)
38. [^] H.R. Rept. 104-469 (VI), at 264-65 (1996). This report also discusses treatment of communicable diseases and indicates that such treatment is intended “to only apply where absolutely necessary to prevent the spread of such diseases. This is only a short term measure until the deportation of an alien who is unlawfully present in the U.S. It is not intended to provide authority for continued long-term treatment of such diseases as a means for illegal aliens to delay their removal from the country.”
39. [^] See Szewczyk v. Department of Social Services, 881 A.2d 259, 273 (Conn. 2005) (quoting Greenery Rehab. Grp., Inc. v. Hammon, 150 F.3d 226, 233 (2nd Cir. 1998)).
40. [^] See Quiceno v. Dep't of Soc. Servs., 728 A.2d 553, 554 (Conn. Super. Ct. 1999).
41. [^] See Diaz v. Division of Social Services and Div. of Medical Assistance, North Carolina Dept. of Health and Human Services 628 S.E.2d 1, 5 (N.C. 2006).
42. [^] See Luna ex rel. Johnson v. Div. of Soc. Servs., 589 S.E.2d 917, 920 (N.C. 2004)
43. [^] See Greenery Rehab. Grp., Inc. v. Hammon, 150 F.3d 226, 233 (2nd Cir. 1998).
44. [^] See Scottsdale Healthcare, Inc. v. Ariz. Health Care Cost Containment Sys. Admin., 75 P.3d 91, 98 (Ariz. 2003).
45. [^] See Spring Creek Mgmt., L.P. v. Dep’t of Pub. Welfare, 45 A.3d 474, 483-84 (Pa. Commw. Ct. 2012).
47. [^] IDEA protects educational opportunities for all students with disabilities and requires schools to provide certain services to all children with disabilities. States and school districts may bill and receive reimbursement for the cost of providing special education and health care related services from a State’s public insurance program (for example, Medicaid). Benefits or services under these laws generally are not based on income eligibility, and where a reimbursement is available, it is provided to the school or eligible entity.
49. [^] See INA 320(a)-(b), 8 CFR 320. See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 3, U.S. Citizens at Birth (INA 301 and 309) [12 USCIS-PM H.3] and Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320) [12 USCIS-PM H.4].
52. [^] See INA 322 and 8 CFR 322. See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 5, Child Residing Outside of the United States (INA 322) [12 USCIS-PM H.5].
10 U.S.C. 504(b) - Citizenship or residency
15 U.S.C. 1681 - Congressional findings and statement of purpose
21 U.S.C. 802 - Definitions
21 U.S.C. 841 - Prohibited acts A
22 CFR 40.51 - Labor certification
29 CFR 570 - Child labor regulations, orders and statements of interpretation
29 U.S.C. 213(c) - Child labor requirements
31 U.S.C. 9304-9308 - Sureties and surety bonds
31 U.S.C. 9305 - Authority and revocation of authority of surety corporations
38 U.S.C 1965 - Definitions
42 CFR 34.4 - Medical notifications
42 U.S.C. 1382c - Definitions
42 U.S.C. 413 - Quarter and quarter of coverage
42 U.S.C. 416(l) - Retirement age
7 CFR 273 - Certification of eligible households
8 CFR 1.2 - Definitions
8 CFR 1.3 - Lawfully present aliens for purposes of applying for Social Security benefits
8 CFR 1003.14 - Jurisdiction and commencement of proceedings
8 CFR 1003.1 - Organization, jurisdiction, and powers of the Board of Immigration Appeals
8 CFR 103.6 - Surety bonds
8 CFR 204.5 - Petitions for employment-based immigrants
8 CFR 212.20-212.23 - Applicability of public charge inadmissibility; Definitions; Public charge determination; Exemptions and waivers for the public charge ground of inadmissibility
8 CFR 212.21(b) - Public Benefits
8 CFR 212.4 - Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3)
8 CFR 213.1 - Admission under bond or cash deposit
8 CFR 213a - Affidavits of support on behalf of immigrants
8 CFR 214.2 - Special requirements for admission, extension, and maintenance of status
8 CFR 214.2 - Special requirements for admission, extension, and maintenance of status
8 CFR 235 - Inspection of persons applying for admission
8 CFR 245.11 - Adjustment of aliens in S nonimmigrant classification
8 CFR 292 - Representation and appearances
8 CFR 293.1 - Computation of interest
8 U.S.C. 1363 - Deposit of and interest on cash received to secure immigration bonds
8 U.S.C. 1601-1646 - Restricting welfare and public benefits for aliens
8 U.S.C. 1611 - Aliens who are not qualified aliens ineligible for Federal public benefits
8 U.S.C. 1612 - Limited eligibility of qualified aliens for certain Federal programs
8 U.S.C. 1613 - Five-year limited eligibility of qualified aliens for Federal means-tested public benefit
8 U.S.C. 1641 - Definitions
Final Specification of Community Programs Necessary For Protection Of Life Or Safety Under Welfare Reform Legislation, 66 FR 3613 (Jan. 16, 2001) (Final rule)
INA 101 - Definitions
INA 101(a)(15) - Nonimmigrant classifications
INA 201 - Worldwide level of immigration
INA 203 - Allocation of immigrant visas
INA 208 - Asylum
INA 212(a)(4) - Public charge
INA 212(d) - Temporary admission of nonimmigrants
INA 213 - Admission of certain aliens on giving bond or undertaking; return upon permanent departure
INA 235 - Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing
INA 237(a)(5) - Public charge (deportable aliens)
INA 245(j) - Adjustment to permanent resident status
INA 289 - Application to American Indians born in Canada
Inadmissibility on Public Charge Grounds, 84 FR 41292 (Aug. 14, 2019) (Final rule)
Pub. L. 104-193 - Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
Pub. L. 104-208 - Illegal Immigration Reform and Immigrant Responsibility Act of 1996
Pub. L. 106-395 - Child Citizenship Act of 2000
Pub. L. 111-293 - Help Haitian Adoptees Immediately to Integrate Act of 2010
Pub. L. 111-8 - Section 602(b), Title VI of the Afghan Allies Protection Act of 2009
Pub. L. 113-4 - 127 Stat 54 of the Violence Against Women Reauthorization Act of 2013
Pub. L. 89-732 - Cuban Refugees Adjustment of Status
Section 11, 26 Stat 1084 of the Immigration Act of 1891
Section 212(a)(15), 66 Stat 163, 183 of the Immigration and Nationality Act of 1952
Sections 1-2, 22 Stat 214 of the Immigration Act of 1882
Applicability of INA 212(a)(4) to Employment-Based Adjustment of Status Applications
Appendix: Applicability of INA 212(a)(4) to Employment-Based Adjustment of Status Applications
Applicability of INA 212(a)(4) to Family-Based Adjustment of Status Applications
Appendix: Applicability of INA 212(a)(4) to Family-Based Adjustment of Status Applications
Applicability of INA 212(a)(4) to Other Applicants
Appendix: Applicability of INA 212(a)(4) to Other Applicants
Applicability of INA 212(a)(4) to Refugee, Asylee, and Parolee Adjustment of Status Applications
Appendix: Applicability of INA 212(a)(4) to Refugee, Asylee, and Parolee Adjustment of Status Applications
Applicability of INA 212(a)(4) to Special Immigrant Adjustment of Status Applications
Appendix: Applicability of INA 212(a)(4) to Special Immigrant Adjustment of Status Applications
Eligibility for Public Benefits
Appendix: Eligibility for Public Benefits
Totality of the Circumstances Framework
Appendix: Totality of the Circumstances Framework
POLICY ALERT - Public Charge Ground of InadmissibilityFebruary 05, 2020
U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual to address the final rule on the public charge ground of inadmissibility. This policy guidance is effective on February 24, 2020, and will apply to all applicants and petitioners filing applications and petitions for adjustment of status, extension of stay, and change of status, except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy, including the 1999 Interim Field Guidance and AFM Ch. 61.1. For additional information, see Public Charge Inadmissibility Determinations in Illinois. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Inadmissibility on Public Charge Grounds final rule. For more information about the classes of aliens who are exempt from the final rule, click here.
Technical Update - Replacing the Term “Foreign National”October 08, 2019
This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].