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Chapter 6 - Age
ALERT: This policy guidance applies to all applicants and petitioners as of February 24, 2020. (The Supreme Court of the United States stayed the last nationwide injunction of the Inadmissibility on Public Charge Grounds Final Rule on January 27, 2020 and stayed the statewide injunction in Illinois on February 21, 2020.) 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 final rule. For more information about the classes of aliens who are exempt from the Final Rule, click here. |
Officers must consider the applicant’s age when determining whether the applicant is likely at any time to become a public charge.[1] An applicant's age may impact his or her work and is therefore relevant to his or her self-sufficiency and likelihood of becoming a public charge at any time in the future. An officer examines an applicant’s age primarily in relation to employment or employability.
A. Standard
The officer assesses whether the applicant’s age makes him or her more or less likely to become a public charge at any time in the future and in the totality of all the circumstances. If an applicant is between the ages of 18 and 61, USCIS considers the applicant’s age as a positive factor in the totality of the circumstances.[2]
Age below 18 or above 61 is a negative factor in the totality of the circumstances. However, applicants whose age is a negative factor in the totality of the circumstances because it is outside of the 18-61 age range can overcome the negative age factor by other positive factors in the totality of the circumstances, such as employment history, being able to attain employment, or having adequate means of financial support by household members.
1. Applicants 62 Years of Age and Older
The applicant’s age may negatively impact his or her ability to earn a living through employment[3] and may make the applicant more likely than not to become a public charge at any time in the future.[4] Therefore, it is a negative factor in the totality of the circumstances.
Although being age 62 and older is a negative factor in the totality of the circumstances, this negative factor, like any negative factor, can be overcome by a positive factor or positive factors, such as current employment, employment history, income over the 125 percent of the Federal Poverty Guidelines (FPG) threshold, having retirement savings or retirement benefits,[5] or other non-governmental resources.
2. Applicants Under the Age of 18
Being under the age of 18 is a negative factor. The weight of the factor, however, also depends on circumstances such as whether the applicant is able to earn an income through employment. In addition, applicants under the age of 18 may be more likely to qualify and receive public benefits.[6]
B. Summary of Age
The following table provides a list of positive factors and negative factors related to age.
Positive Factors |
Negative Factors |
|---|---|
|
|
Age alone does not determine whether an applicant is more likely than not to become a public charge at any time in the future. An officer reviews the totality of the alien’s circumstances to determine whether the applicant is inadmissible based on public charge.
C. Evidence
An applicant's birth certificate is sufficient to establish the applicant's age.
Footnotes
1. [^] See INA 212(a)(4). See 8 CFR 212.22(b).
2. [^] See 8 CFR 212.22(b)(1)(i) and 42 U.S.C. 416(l)(2).
3. [^] See Matter of Harutunian (PDF), 14 I&N Dec. 583 (BIA 1974) (A legacy Immigration and Naturalization Service Regional Commissioner took a totality of the circumstances approach and determined that the respondent in that case was inadmissible as likely to become a public charge because the respondent lacked the means to support herself, the ability to earn a living, and the presence of a sponsor to assure that she would not need public support. Furthermore, the alien was increasingly likely to become dependent, disabled, and sick because of her older age, and accordingly was expected to become dependent on old-age assistance for support).
4. [^] See DHS’s analysis of the Survey of Income and Program Participation (SIPP) data in Tables 14 and 15 in 83 FR 51114, 51181 (PDF) (Oct. 10, 2018) (proposed rule).
5. [^] The minimum age for retirement for purposes of Social Security is generally 62. People who are at the minimum retirement age may stop working and start receiving retirement benefits such as Social Security. If a person does have access to Social Security benefits or a retirement pension, he or she may not need public benefits for income maintenance or other benefits to be self-sufficient as the income from Social Security or the pension may suffice. See 42 U.S.C. 416(l). See U.S. Social Security Administration (SSA), Retirement Planner: Benefits by Year of Birth.
6. [^] See 83 FR 51114, 51179-51181 (PDF)(Oct. 10, 2018) (proposed rule).
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 U.S.C. 1613 - Five-year limited eligibility of qualified aliens for Federal means-tested public benefit
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 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
Pub. L. 104-193 - Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
