US Immigration from Mexico

"Public Charge" refers to a ground that can bar issuance of a green card. The government has put new documentation hurdles on green card applications since February 2020 and has a much more restrictive interpretation of the public charge ground listed in the INA by concluding that any immigrant is likely to become primarily dependent on the government for support if the immigrant has received 1 or more public benefits for more than 1 year in total during the last 3 years prior to and during an application for a green card. USCIS is now requiring much more financial information from immigrants when applying for a green card even though a US citizen or LPR sponsor is already on the hook for the Affidavit of Support and reimbursement to the government of any means-tested public benefits received. Green card applications are very difficult to put together and understand now for those doing so on their own given these new burdens of documentation.

The public benefits that factor into the public charge determination include non-emergency Medicaid, Food stamps, housing assistance (such as subsidized housing under Section 8), and cash assistance - even if provided by a local, state or tribal source.

What is not factored in to public charge:

• Benefits used by lawful family members (US citizen children, for example);
• Benefits used by military members including their spouses and children;
• Social security retirement and workers comp;
• WIC, school breakfast and lunch programs, head start, and veterans benefits.

Certain groups of immigrants are not subject to the public charge ground:

• Asylees and Refugees
• Registry, Cuban Adjustment Act
• TPS applicants,
• U visa for crime victims, Trafficking Visas, Violence Against Women Visas
• SIJS applications for abandoned, neglected, or abused children,
• and a few others.

**** Remember, this is a ground of inadmissability - why someone cannot qualify for a green card - it does not apply to those applying for naturalization (citizenship) who are already lawful permanent residents and it doesn't apply to lawful permanent residents in almost all circumstances. It applies towards someone applying for a green card.****

If you have been laid off in this crisis, accessing "unemployment benefits" does not count against you as public charge inadmissability or against your citizenship application.

If the immigrant is determined to be a public charge, the immigrant may be able to post a public charge "bond" (pay money) to overcome this ground, but the finding whether a bond will be permitted is still discretionary - up to the USCIS officer who can ask not only about finances now but health history and other personal information.

On a related subject, I've had questions about Unemployment benefits
and whether this impacts public charge. Unemployment benefits are available if you had a work permit, or your immigration status allowed you to work without a work permit, and you were work-authorized during the period needed to be eligible to receive regular unemployment insurance. Undocumented workers are not eligible for unemployment benefits.

The Stimulus check (the $1000 tax credit check being mailed out by the US treasury) may be received by you if you had a social security number that was valid for employment when you filed your last tax return and you reported a maximum of $75,000 in income on your last tax return (single filer; other amounts apply if married or head of household filer). You also have to be considered a resident alien, which basically means that if you are not a green card holder or US Citizen, you reside permanently in the U.S. So, what do do if you receive one of these checks and you were not permitted to work on that SSN used to file your taxes? Then this tax credit does not apply to you and you should not cash that check.

Even though the check is a tax credit and public charge inadmissability is not impacted by cashing the check (whether or not you earned it from legal employment), cashing it could have criminal implications, which could impact any discretionary application decision by USCIS or other grounds of criminal inadmissability if charged or admitted. Be careful.

Always consult your tax advisor before making a decision on what to do, regardless.

What About COVID 19 Testing, Food stamps, home-delivered meals for Kids Needing School Lunch, WIC, and TEFAP programs - How Will This Affect Public Charge?

USCIS has announced that testing, prevention or treatment for COVID-19 will not be used against immigrants in the public charge test when applying for a green card. So, state provided programs through Medicaid offering such services will not impact you.

Pandemic EBT (P-EBT) (allows states to provide meal-replacement benefits for kids who would regularly get school lunch if not for the school closures) is not considered in a public charge test. WIC, TEFAP (emergency food assistance) is also not considered as part of the public charge determination.