“I’m a foreign student supported by my family back home. My child had to go to emergency. May my child receive Medicaid without violating my immigrant status?” “I am applying for green card. My immigration form asks if I have received any public benefit. My children benefited from their school lunch program and received free or low-cost Medicare. Does that mean my children and/or I disqualify?” These are very common questions that arise among foreigners residing in the United States. It is hard to tell what is a benefit a foreigner is entitled to and what is not. Especially for foreigners, who are legally authorized to work and contributing to the society, it seems unfair that they should worry about receiving the benefits they are paying for.

Indeed, there are a couple of provisions in the Immigration Law that heeds foreigners from becoming public charge. Under the Immigration & Nationality Act ("INA") Sec. 212(a)(4), any alien, who in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge, is inadmissible. Additionally, under INA Sec. 237(a)(5), any alien who, within five years of date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable. Because the meaning of ‘public charge’ was not clear, most foreign residents simply avoided receiving all public benefits, including the ones they were entitled to. Or worse, unaware of these dangers, some foreigners received certain public benefits and became inadmissible.

In this regard, I have felt the need for better dissemination of information on this topic, and I hope this article will help the readers understand the Immigration’s position on the use of public benefits.

General Guideline

According to the USCIS’ published guideline, it will not consider receiving the following benefits against the recipient as a public charge.

Health Care Benefits, including programs such as Medicaid, the Children’s Health Insurance Program (CHIP), prenatal care, or other free or low-cost medical care at clinics, health centers, or other settings (other than long-term care in a nursing home or similar institution);
Food Programs, such as Food Stamps, WIC (the Special Supplemental Nutrition Program for Women, Infants, and Children), school meals, or other food assistance;
Other Programs that do not give cash, such as public housing, child care, energy assistance, disaster relief, Head Start, or job training or counseling.
In comparison, the Immigration Services may consider receiving the benefits below against the aliens:

Cash welfare, such as Supplemental Security Income (SSI), cash Temporary Assistance for Needy Families (TANF), and state General Assistance;
Institutionalization; and Long-term care.
If the immigrant has relied on cash income benefits, it might affect the recipient in the following circumstances.

1. Lawful Permanent Residents and Travel

In general, using cash welfare will not be a problem for permanent residents (i.e., greencard holders). However, using cash welfare could be a problem if the resident travels outside of the U.S. for more than six months. Again, using non-cash benefits will not cause a problem.

A lawful permanent resident, who gets SSI, TANF, or other cash welfare, should avoid traveling outside of the U.S. for more than 180 days because it is unlikely and difficult, the USCIS can examine whether the returning permanent resident is likely to become a public charge and may not let her re-enter the country.

Sometimes, a permanent resident, who plans to be outside the country for a prolonged time, may also wonder if she can still receive public benefits while she is out of the country. This has to be checked with the agency that provides the benefit because it may be against the rules to continue receiving public benefits while outside of the U.S. Regarding this, please direct the question to the agency.

Similarly, a permanent resident may wonder if the government will make her pay back public benefits received before the trip. The government can if the benefits were received improperly such as lying about the income level or one’s resident status.

Finally, can the Immigration Services deport or remove a permanent resident for using benefits? A simple answer is that USCIS cannot deport someone for using public benefits that she qualifies to receive. Deportation can only occur if the immigrant not only received cash welfare or long-term institutional care for reasons that existed before entering the U.S. and within the 5 years after entering the U.S., but the immigrant or her sponsor refused to repay the legal debt to the government agency that provided the cash or long-term care after it filed a lawsuit and won in court.

Thus, if an immigrant needs benefits because she became sick, or had an accident or other crisis after coming to the U.S., then she cannot be deported for using those benefits.

2. Citizens and Applying for Citizenship

A U.S. citizen cannot lose her citizenship even if she gets benefits. Similarly, an applicant for naturalization, who has properly received SSI or other cash benefits, will not be stopped from becoming a U.S. citizen. However, in order to qualify for naturalization, one has to meet the ‘good moral character’ requirement, and if the applicant ever got public benefits improperly, or misled the USCIS when she got her green card, then she can be disqualified for lacking "good moral character".

3. Sponsoring relatives

As previously discussed in another article, a permanent resident or U.S. citizen, who wishes to sponsor her family members, must complete the affidavit of support, a legal agreement to support the family member until she has credit for 40 quarters (10 years) of work in the U.S., or until she becomes a U.S. citizen. In order to qualify, the sponsor must be able to meet a minimum income requirement, or a qualifying co-sponsor must submit an additional affidavit. Some potential sponsors wonder if their receiving government assistance adversely affects their ability to qualify as a sponsor. As there is no public charge screening for sponsors, receiving cash benefits will not disqualify them from acting as a sponsor. Nevertheless, any cash income benefits may not be counted toward meeting the requisite 125 percent of poverty income required of the sponsor.

Applying for Greencard

When reviewing green card applications, the USCIS or State Department can deny them if it thinks the applicant cannot support herself and that she will rely on cash welfare in the future, even if she is not using cash benefits now.

In order to determine if the applicant is likely to become a public charge in the future, the USCIS or State Department look at many factors. Although the government can look at whether she used cash welfare in the past, it cannot make its decision based only on what happened in the past. The government must look at all of the following factors together to decide whether you might become a public charge in the future:

Age
Health
Income
Family size
Education and skills

Therefore, when applying for your green card, it is important to give the government information that shows the applicant will not need benefits to support herself. For example, if one is elderly but has family in the U.S. with enough money to support or if one has a special skill that will get make it easy to find a good job in the U.S., such information should be given to the government.

The information contained in article is provided for general information only and should not serve as a substitute for legal advice.