Chapter 2 - Definitions
Under the Immigration and Nationality Act (INA) 212(a)(4), an applicant for adjustment of status is inadmissible if, in the opinion of the immigration officer at the time of application for adjustment of status, they are “likely at any time to become a public charge.”[1]
A. Likely at Any Time to Become a Public Charge
The INA does not define the phrase “likely at any time to become a public charge.”[2]
The regulations at 8 CFR 212.21(a) define “likely at any time to become a public charge” to mean “likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.”[3]
B. Public Cash Assistance for Income Maintenance
For purposes of a public charge inadmissibility determination, “public cash assistance for income maintenance” means:
- Supplemental Security Income (SSI);
- Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program; or
- State, tribal, territorial, or local cash benefit programs for income maintenance, commonly called “General Assistance.”[4]
C. Long-term Institutionalization at Government Expense
For the purpose of a public charge inadmissibility determination, “long-term institutionalization at government expense” means government assistance for long-term institutionalization (in the case of Medicaid, limited to institutional services under Section 1905(a) of the Social Security Act) received by a beneficiary, including in a nursing facility or mental health institution.
Long-term institutionalization at government expense is the only category of Medicaid-funded services (limited to institutional services under Section 1905(a) of the Social Security Act) considered in a public charge inadmissibility determination.[5]
As part of the consideration of long-term institutionalization, USCIS considers both permanent institutionalization as well as institutionalization for a long period of time short of indefinite duration, in the totality of the circumstances.[6] However, long-term institutionalization does not include imprisonment for conviction of a crime or institutionalization for short periods for rehabilitation purposes.[7]
Long-term institutionalization does not include sporadic or intermittent periods of institutionalization, even on a recurring basis.[8] No other services paid for by Medicaid, including home and community-based services (HCBS), and no services provided under the Children’s Health Insurance Program (CHIP), are considered as long-term institutionalization at government expense.[9]
D. Receipt (of Public Benefits)
USCIS determines an individual’s likelihood of becoming primarily dependent on the government for subsistence, as demonstrated by the alien’s receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.[10] “Receipt (of public benefits)” only occurs when the applicant is listed as a beneficiary of the benefit.
USCIS does not consider public benefits received by the applicant’s relatives, including children, or received by the applicant solely on behalf of third parties. It is not considered receipt to apply for a public benefit on one’s own behalf or on behalf of another. Similarly, approval for future receipt of a public benefit on the alien’s own behalf or on behalf of another is also not considered receipt.[11]
E. Government
DHS defines “government” for the purpose of implementing the public charge ground of inadmissibility as “any Federal, State, Tribal, territorial, or local government entity or entities of the United States.”[12]
F. Household
For the purpose of a public charge inadmissibility determination, DHS states that an alien’s household includes:[13]
- The alien;
- The alien’s spouse, if physically residing with the alien;
- The alien’s parents, if physically residing with the alien;
- The alien’s unmarried siblings under 21 years of age, if physically residing with the alien;
- The alien’s children,[14] if physically residing with the alien;
- Any other individuals who are listed as dependents on the alien’s federal income tax return;[15] and
- Any other individuals who list the alien as a dependent on their federal income tax return.
Footnotes
[^ 1] See INA 212(a)(4).
[^ 2] See INA 212(a)(4)(A).
[^ 3] See 8 CFR 212.21(a).
[^ 4] See 8 CFR 212.21(b). USCIS does not consider benefits that are not referenced above when making a public charge inadmissibility determination. See 8 CFR 212.22(a)(3). For details and examples, see Chapter 7, Consideration of Current and/or Past Receipt of Public Cash Assistance for Income Maintenance or Long-term Institutionalization at Government Expense [8 USCIS-PM G.7].
[^ 5] See 8 CFR 212.21(c).
[^ 6] See Chapter 7, Consideration of Current and/or Past Receipt of Public Cash Assistance for Income Maintenance or Long-term Institutionalization at Government Expense, Section C, Long-term Institutionalization at Government Expense [8-USCIS-PM G.7(C)].
[^ 7] See 8 CFR 212.21(c).
[^ 8] See 87 FR 55472, 55563 (PDF) (Sept. 9, 2022).
[^ 9] For more information about long term-institutionalization, see Chapter 7, Consideration of Current and/or Past Receipt of Public Cash Assistance for Income Maintenance or Long-term Institutionalization at Government Expense, Section C, Long-term Institutionalization at Government Expense [8 USCIS-PM G.7(C)].
[^ 10] See 8 CFR 212.21(a). For more information regarding the public benefits considered in a public charge inadmissibility determination, see Section B, Public Cash Assistance for Income Maintenance [8 USCIS-PM G.2(B)], and Section C, Long-term Institutionalization at Government Expense [8 USCIS-PM G.2(C)].
[^ 11] See 8 CFR 212.21(d).
[^ 12] See 8 CFR 212.21(e).
[^ 13] See 8 CFR 212.21(f).
[^ 14] As defined in INA 101(b)(1).
[^ 15] Including a spouse or child as defined in INA 101(b)(1) not physically residing with the alien.