An intending immigrant to the United States who is deemed likely to become a public charge is ineligible to be granted U.S. permanent resident status. Per the DHS rule, foreign nationals will be inadmissible if they are deemed likely to become primarily dependent on the government by either: (1) the receipt of public cash assistance for income maintenance, or (2) by long-term institutionalization at government expense. Commentary to the rule states that “primary dependence” on the government means significant reliance on the government for support, not merely transient or supplementary dependence.4
Under the new rule, a determination of a foreign national’s likelihood of becoming a public charge will be assessed based on the totality of the circumstances, taking into consideration the factors set forth in the Immigration and Nationality Act, including a foreign national’s age, health, family status, assets, resources, financial status, education, skills, and, if required, a Form I-864 affidavit of support.
Any past and current receipt of Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) cash assistance for income maintenance, and other state and local cash assistance for income maintenance may be considered in determining an applicant’s likely dependence on the government. DHS may also consider long-term institutionalization as government assistance, which may include long-term assistance applied to nursing homes. Assistance outside of these categories will not be considered public benefits under the new rule. Moreover, the rule exempts benefits received on behalf of another from a public charge determination.
