Written by: Bita Lak
The purpose of this article is to overview the grounds for inadmissibility with a focus on public charge. A non-citizen who wishes to come to the United States needs to satisfy the requirements for immigrant or non-immigrant classifications. Satisfying the requirements of these classifications do not guarantee admission to the United States. Some applicants may face grounds for inadmissibility upon arrival and could not be admitted to the United States. Some non-citizens who already reside in the United States can also be considered inadmissible if they evaded inspection by a U.S. immigration official when they entered the United States. When a non-citizen applies for a visa to travel to and enter the United States, one of the first steps is appearing before a U.S. consular officer, during which the officer reviews the eligibility of the applicant and evaluates whether any of the grounds for inadmissibility is present. The U.S. Consulate has the sole discretion to issue the visa; however, issuance of immigrant or non-immigrant visas does not guarantee admission to the United States. Upon arrival at a port of entry, a U.S. immigration officer also determines inadmissibility factors.
Under 8 U.S.C. § 1182, non-citizens who are inadmissible under one of the inadmissibility grounds include the following categories: health-related grounds, criminal and related grounds, security and related grounds, public charge, labor certification and qualifications for certain immigrants, illegal entrants, and immigration violators, lacking legal documentation, aliens previously removed, and miscellaneous. In this article, the main focus is on overviewing public charge ground of inadmissibility.
Public Charge Grounds of Inadmissibility
Under 8 U.S.C. § 1182(a)(4) any non-citizen 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 will be considered inadmissible. Factors that a consular officer or the Attorney General shall at a minimum consider are age; health; family status; assets, resources, and financial status; and education and skills. In order to determine whether a non-citizen is entitled to a visa, admission to the United States, or a green card, the immigration officer shall consider whether the applicant is likely to become a burden and dependent on certain government benefits in the future.
Not all immigrants are subject to the public charge ground of inadmissibility, for instance, U and T visa holders are exempt from this regulation. As discussed in an earlier post related to the public charge proclamation from January 4, 2020, the Department of Homeland Security (DHS) published the original rule regarding the public charge on August 14, 2019, to become active on October 15, 2019; however, several federal courts enjoined the pubic charge rule. The case went to the U.S. Supreme Court, which ultimately stayed the last remaining injunction, meaning that the rule could become effective while the underlying cases play out in the courts, which could take months if not more than a year. As of February 24, 2020, DHS implemented a final rule on public charge inadmissibility. This is considered as an amendment to the Immigration and Nationality Act of 1952.
According to the United States Citizenship and Immigration Services’ (USCIS) Fact Sheet the benefit received by a non-citizen that may be considered under the public charge includes Supplemental Security Income; Temporary Assistance for Needy Families; any federal, state, local, or tribal cash benefit programs for income maintenance (often called general assistance in the state context, but which may exist under other names); Supplemental Nutrition Assistance Program (formerly called food stamps); Section 8 Housing Assistance under the Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); Public Housing (under the Housing Act of 1937, 42 U.S.C. 1437 et seq.); and federally funded Medicaid (with certain exclusions).
In addition, according to DHS implementation, the following benefits will not be considered under the public charge rule: emergency medical assistance; disaster relief; national school lunch programs; the Special Supplemental Nutrition Program for Women, Infants, and Children; the Children’s Health Insurance Program; subsidies for foster care and adoption; government-subsidized student and mortgage loans; energy assistance; food pantries and homeless shelters; and Head Start.
As of February 24, 2020, all U.S. Consulates started implementing the new public charge inadmissibility rule. Beside the interview process, applicants are now required to fill out the Form DS-5540. Applicants who are residing in the United States and are going through adjustment of status are also required to fill out Form I-944, officially called a “Declaration of Self-Sufficiency”, in order to prove that they can financially support themselves. There is no filling fee for Form I-944, although there is a wide variety of financial documents that each applicant must provide to USCIS along with the I-944.
As the recent COVID-19 pandemic has affected people’s daily lives in the U.S. and around the world, USCIS announced on March 13, 2020, that “USCIS will neither consider testing, treatment, nor prevention care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of public charge inadmissibility determination or in relation to the public benefits condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if the treatment is provided or paid for by one or more public benefits, such as federally funded Medicaid.” USCICS also encourages anyone with COVID-19 symptoms to seek necessary medical treatment and that “will not negatively affect any [foreign national] as part of future public charge analysis.”
If you or any of your family members are facing a public charge or have any questions in this regard, please contact skilled immigration lawyers, such as the Law Offices of Kameli and Associates, P.C., to assist you with this matter.