Kate M. Manuel
Legislative Attorney
The Immigration and Nationality Act (INA) has long provided for aliens’ exclusion and deportation from the United States on “public charge” grounds. Under current law, aliens outside the United States who seek to obtain visas at U.S. consulates overseas, or admission at U.S. ports of entry, are generally denied entry if they are deemed “likely at any time to become a public charge.” Aliens within the United States who seek to adjust their status to that of lawful permanent resident (LPR), or who entered the United States without inspection, are also generally subject to this ground of inadmissibility. Similarly, LPRs and other aliens who have been admitted to the United States are removable if they become a public charge within five years after the date of their entry due to causes that pre-existed their entry. These public charge grounds have recently been of interest because of concerns, among some Members of Congress and the public, regarding noncitizens’ receipt of public assistance.
The INA does not expressly define what it means for an alien to be a public charge, and, prior to 1996, there was no statutory guidance on what was to be considered in determining whether an alien is inadmissible or deportable (removable) on public charge grounds. Then, in 1996, the INA was amended to require that certain factors be taken into account when determining whether aliens are inadmissible on public charge grounds, including the alien’s age, health, family status, financial resources, education, and skills. There still is no similar guidance on the public charge ground of deportability.
Given this general lack of statutory guidance, the executive and judicial branches initially construed the meaning of public charge in adjudicating cases involving individual aliens. In so doing, administrative authorities interpreted public charge differently for purposes of the grounds of inadmissibility than for the grounds of deportability. Specifically, public charge was construed broadly in the context of admissibility, with determinations based on a “totality of the circumstances” test that considered factors like those codified in the INA in 1996. In contrast, in the context of deportability, “public charge” was construed more narrowly. Aliens could only be found to be deportable on public charge grounds if (1) they received government assistance that they were legally obligated to repay, (2) the government entity providing the assistance demanded repayment, and (3) the alien or the alien’s sponsor was unable to pay.
Following the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, executive agencies issued guidance regarding the public charge grounds. While PRWORA generally restricts noncitizens’ eligibility for “public benefits,” it permits them to receive specified benefits, and its enactment raised questions about whether aliens who receive benefits for which they are eligible under PRWORA could potentially be removable on public charge grounds. Immigration officials addressed these questions in a 1999 policy letter that defined public charge, and identified which benefits are considered in public charge determinations. This policy letter underlies current regulations and other guidance on the public charge grounds of inadmissibility and deportability.
Collectively, the various sources addressing the meaning of public charge suggest that an alien’s receipt of public benefits, per se, is unlikely to result in the alien being deemed removable on public charge grounds. Neither the INA nor implementing regulations address the role that receipt of public benefits plays in public charge determinations. Other agency guidance and court decisions indicate that, while receipt of certain public benefits could be considered in public charge determinations, other factors are also considered (e.g., age, obligation to repay).
Date of Report: September 9, 2013
Number of Pages: 17
Order Number: R43220
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