When does public charge apply in visa applications or for adjustment of status?
According to the Immigration and Nationality Act (INA), if you are seeking admission to the United States or seeking to adjust status to be lawfully admitted for permanent residence or green card, you are inadmissible if "at the time of application for admission or adjustment of status, [you are] likely at any time to become a public charge." Public charge does not apply in naturalization proceedings. If an individual is inadmissible, admission to the United States or adjustment of status is not granted. To obtain help in assessing your options and adjusting your status, contact our experienced immigration and visa attorneys at JCS Immigration and Visa Services. [LINK TO CONTACT JCS]
Does public charge apply to me?
For benefits adjudicated by USCIS, whether a person is likely to become a public charge is usually considered when someone is trying to become a permanent resident (get a green card). It is also considered when someone applies for certain non-immigrant or other temporary benefits, for example by extending non-immigrant status within the United States.
There are certain groups of people who are either exempt from public charge, or may get a waiver for public charge when applying for a green card or other benefits with USCIS. These include:
- Asylum applicants
- Refugees and asylees applying for adjustment to permanent resident status
- Amerasian Immigrants (for their initial admission)
- Individuals granted relief under the Cuban Adjustment Act (CAA)
- Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA)
- Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA)
- Individuals applying for a T Visa
- Individuals applying for a U Visa
- Individuals who possess a T visa and are trying to become a permanent resident (get a green card)
- Individuals who possess a U visa and are trying to become a permanent resident (get a green card)
- Applicants for Temporary Protected Status (TPS)
- Certain applicants under the LIFE Act Provisions
How is it determined whether someone is likely to become a public charge for admission or adjustment purposes?
Inadmissibility based on the public charge ground is determined by the totality of the circumstances. This means that the adjudicating officer must weigh both the positive and negative factors when determining the likelihood that someone might become a public charge. At a minimum, a U.S. Citizenship and Immigration Services (USCIS) officer must consider the following factors when making a public charge determination:
- Family status
- Financial status
- Education and skills
The officer may also consider any affidavit of support filed on behalf of the individual. In assessing the totality of the circumstances, including the statutory factors above, an officer may consider the individual’s receipt of certain publicly funded benefits. Not all publicly funded benefits are relevant to deciding whether someone is likely to become a public charge. When determining whether someone is likely to become a public charge, USCIS will consider whether the individual is likely to become primarily dependent on the government for subsistence as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense. Short-term institutionalization for rehabilitation is not subject to public charge consideration under existing field guidance. Immigration law is a complex field. If you need assistance in proving your financial ability or help with your application for a visa, green card or adjustment of immigration status, please call or email our experienced immigration attorneys for a free initial consultation. [LINK TO CONTACT JCS]