The “Public Charge” Ground of Inadmissibility

June 12, 2017 3:54 pm
by David Jakeman

What is a public charge?

Under INA § 212(a)(4), any immigrant who is likely to become a “public charge” is inadmissible at the time of application.  An immigrant is a “public charge” if it is likely that he will become dependent upon the government for assistance, either in the form of monetary payments or through institutionalization at the government’s expense.  Clearly, the government is concerned about allowing immigrants into the country who are unable to support themselves, thus burdening public resources.  Therefore, the law requires that many visa applicants prove they can support themselves financially upon arrival to the United States.  The support may also come from a sponsor who is willing to financially assist the immigrant.

How does the government determine that an immigrant will be a public charge?

Immigration and consular officers look at a variety of factors in determining whether an immigrant will be deemed a public charge.  Those factors are age, health, family status, assets, resources, financial status, education and skills, and any receipt of publicly funded benefits.  The immigrant may also provide an affidavit of support supplying more detailed information.  The final decision rests on a “totality of the circumstances” based on all the information provided by the immigrant.

Sponsors

Some immigrants are required to provide an affidavit of support (Form I-864) from a sponsor. Immigrants seeking admission or adjustment of status as immediate relatives of U.S. citizens, family based preferences, and certain employment based preferences must provide this affidavit of support.  A sponsor is required to demonstrate that he annually earns at least 125% of the income needed for his own family in addition to the immigrant/immigrant's family that he is supporting.  The government determines if a sponsor earns enough based on the “poverty guidelines.”  The poverty guidelines provide a breakdown of the amount the sponsor must earn based on the number of individuals to be supported.  The sponsor must be willing be provide support for the immigrant and his family for up to ten years or until the immigrant becomes a United States citizen.

Where the public charge ground of inadmissibility does not apply

Some classes of immigrants are not subject to the public charge ground of inadmissibility.  These include refugee or political asylees, refugees and asylees applying for adjustment to permanent legal status, people granted cancellation of removal, individuals applying for a T or U visa, individuals with T or U visas who are applying for adjustment to permanent legal status, those applying for temporary protected status, and immigrants specifically protected under certain congressional acts such as the Cuban Adjustment Act.  These immigrants are either exempt from the public charge ground or are eligible for a waiver when applying for permanent residence or other benefits.

Temporary Visa Applicants

Certain non-immigrants who plan to come to the United States for a temporary period must also prove they will be supported.  This applies to tourists and visitors who come to the United States for medical care under the B-2 visa.  Additionally, those applying for student visas must show their education and living expenses will be fully financed without having to work.