A noncitizen would be considered a public charge if the Department of Homeland Security, “DHS” determines based on a totality of the circumstance-based analysis that a noncitizen is likely to become primarily dependent on the government for subsistence as further demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.
Typically, any current and/or past receipt of public cash assistance for income maintenance or long-term institutionalization at government expense may lead to a finding that a noncitizen is likely to become primarily dependent on the government for subsistence, supporting a finding that such a noncitizen is a public charge. We have discussed the types of public assistance that may or may not lead to a public charge determination here.
Are legal permanent residents subject to a public charge inadmissibility determination when they apply to renew their Green Cards?
Legal permanent residents, “LPRs” applying to renew their Green Card are not subject to a public charge inadmissibility determination. The reason is that LPRs are not typically required to establish that they are admissible to the United States to renew their Green Card.
Does the receipt of public benefits by a legal permanent resident affect their immigration status while they are in the United States?
Since LPRs have already adjusted their status, they are not typically viewed as applicants for admission to the United States which will not subject LPRs to the public charge ground of inadmissibility.
Will a legal permanent resident who has received or is receiving public cash assistance for income maintenance or long-term institutionalization at government expense and departs the United States be subject to a public charge determination after a return from a trip abroad?
No, because legal permanent residents who have traveled outside the United States are not treated as an applicant for admission when they return from a trip. As a result, such an LPR would not generally undergo a public charge inadmissibility determination upon their return. LPRs returning from a temporary trip abroad that maybe considered to be seeking admission to the United States occur in the following situations:
- Abandoned or relinquished their status as a legal permanent resident.
- Has been absent for a continuous period more than 180 days.
- Departed the United States while in removal proceedings or extradition proceedings.
- Engaged in certain illegal activity after departing the United States.
- Committed an immigration law violation that makes them inadmissible pursuant to INA 212(a) (unless they have been granted relief under INA 212(h) since the offense).
- The LPR Is attempting to enter the United States at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.
Can a legal permanent resident jeopardize status through a finding of deportability based on a public charge finding?
Unlikely. The law requires a two-step determination for the government to charge someone as deportable as a public charge. For a non-citizen to be deportable, the government must determine that:
- the person has become a public charge within five years of date of entry, and
- the circumstances causing the person to become a public charge arose before their entry into the United States.
As a result, the public charge ground of deportability is rarely, if ever, charged by DHS. First, to trigger public charge, a person must have received certain benefits within five years of an entry. Many non-citizens are barred from receiving federal means-tested public benefits in their first five years after admission or adjustment and therefore cannot trigger public charge during the critical period for purposes of determining public charge deportability.
Furthermore, for those who receive benefits after a subsequent entry into the United States, they are likely to be receiving benefits due to circumstances arising after entry.
Finally, the mere receipt of public benefits – even cash assistance received within five years of the non-citizen’s date of entry – does not make a non-citizen removable as a public charge. For a public charge finding there is a strict three-part test that must be met to find someone has become a public charge.
All three of the following conditions must apply for the public charge deportability ground to apply:
A Legally Imposed Charge or Fee
That must be imposed by the government entity for the services rendered to the LPR where the LPR is legally obligated to repay the government entity for the benefits received.
Demand for Payment
The government agency granting the benefit must have made a demand for repayment which is made within five years of the LPR’s last entry in the United States.
Failure to Pay
After demand for payment, the public charge finding maybe sustained if the LLPR failed to repay the fee after demand. As a result, an LPR can avoid the public charge finding in this scenario, simply by paying the fee.
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