WHEN IS IT SAFE FOR IMMIGRANTS TO USE PUBLIC BENEFITS?

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1 The U.S. government has important news about public charge when receiving public benefits may affect an immigrant s status or ability to travel outside of the U.S. The government s new guidance, which took effect May 25, 1999, gives clear rules about when it is and is not safe to use public benefits. HIGHLIGHTS OF THE NEW PUBLIC CHARGE GUIDANCE Use of MassHealth, Children s Medical Security Plan (CMSP), Healthy Start or other health services by immigrants or their family members will not make immigrants a public charge unless they use MassHealth or other government funds to pay for long-term care (nursing home or other institutionalized care). Use of food stamps, WIC, public housing, or other non-cash programs by immigrants and their family members will not make immigrants a public charge. Use of cash welfare (such as SSI, TAFDC or EAEDC) by an immigrant s children or other family members will not make an immigrant a public charge unless these benefits are the family s only income. An immigrant s use of cash welfare, like SSI, TAFDC, or EAEDC, might make an immigrant a public charge, depending on the situation. The INS or State Department can count these benefits in deciding whether immigrants are likely to become a public charge.

2 Overview of Public Charge WHAT IS PUBLIC CHARGE? "Public charge" is a term used in immigration law. The term describes persons who cannot support themselves and who depend on benefits that provide cash -- like Transitional Assistance for Families with Dependent Children (TAFDC) or Supplemental Security Income (SSI) for their income. Depending on a person s immigration status, the Department of Homeland Security and State Department consular officers abroad can refuse to let immigrants enter the U.S., reenter the U.S., or become permanent residents, if they think they will not be able to support themselves without these benefits in the future. Under very rare circumstances explained on page 5, the DHS can also deport immigrants for becoming a public charge within 5 years of entering the U.S. Public charge is not an issue for immigrants who are applying for citizenship. Public charge is also not an issue for refugees or persons granted asylum. *Adapted from the national edition of the National Immigration Law Center's public charge guidance HOW DOES THE GOVERNMENT DECIDE WHETHER SOMEONE COULD BECOME A PUBLIC CHARGE? DHS or State Department should look at many factors to decide if an immigrant is likely to become a public charge in the future. Although the government can look at whether immigrants 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 an immigrant might become a public charge in the future: Age (Is the immigrant elderly or very young, and likely to need support?) Health (Does the immigrant have an illness that requires costly treatment?) Income (Is the immigrant low-income or poor with no assets?) Family size (Does the immigrant have a large family to support?) Education and skills (Is the immigrant working now or can the person easily find a job?) When immigrants seek to enter the U.S. or apply for a green card, the government may ask questions to see if they are likely to become a public charge in the future. It is important for immigrants to give the DHS information that shows they will not need benefits to support themselves. For example, if they are elderly, but have family in the U.S. with enough money to support them, or, if they have a special skill that will get them a good job in the U.S., they should give this information to the government. WHAT KINDS OF BENEFITS MIGHT CAUSE A PUBLIC CHARGE PROBLEM? In deciding whether an immigrant is likely to become a public charge, the INS can look at whether the person has used cash welfare, such as SSI, TAFDC, or EAEDC, or if the immigrant needs long-term institutional care. But even if the immigrant used cash welfare in the past, the person can still show that he or she will not need it in the future (for example, because the person has a job now). The CIS is supposed to look at an immigrant s whole situation when it decides if that person might become a public charge in the future.

3 WHAT IF AN IMMIGRANT USED MASSHEALTH, HEALTHY START, WIC, FOOD STAMPS OR OTHER NON-CASH PROGRAMS? Using MassHealth, WIC, food stamps and other non-cash programs will not make an immigrant a public charge. Using MassHealth can only be a problem if the immigrant is in a nursing home or other long-term care. All other non-cash programs, like housing, school lunch, job training, childcare, shelters, disaster relief, and health clinics, will not cause a public charge problem. WHAT IF AN IMMIGRANT S CHILDREN OR OTHER FAMILY MEMBERS USE BENEFITS? The INS will not look at whether children or other family members used health care or other noncash benefits like those listed above. If children or other family members use cash welfare (like TAFDC or SSI), it will not count against the immigrant in a public charge decision unless it is the family s only income. Applying for a Green Card CAN THE INS REFUSE TO GIVE AN IMMIGRANT A GREEN CARD BECAUSE THEY THINK THE PERSON MIGHT USE CASH WELFARE ONE DAY? Yes. If the INS thinks an immigrant cannot support his or herself and will rely on cash welfare in the future, it can refuse to give the person a green card -- even if he or she is not using cash benefits now. See question #2 on page 2 for some hints on how immigrants might prove that they will not rely on cash welfare in the future. Using non-cash programs will not cause a problem when immigrants apply for a green card. IF AN IMMIGRANT USED CASH WELFARE SEVERAL YEARS AGO, BUT DOES NOT RECEIVE CASH BENEFITS TODAY, WILL THE PERSON HAVE TROUBLE GETTING A GREEN CARD? An immigrant should not be denied a green card just because he or she used cash welfare in the past. But, the person will need to show that he or she is not likely to need cash welfare in the future. It will be easier to show this if the person used welfare a long time ago, or only briefly to get through a hard time. IF AN IMMIGRANT IS VERY SICK AND IS LIVING IN A NURSING HOME, COULD THE PERSON HAVE TROUBLE GETTING A GREEN CARD? Yes. If an immigrant is in a nursing home or has a serious long-term illness, he or she will have trouble getting a green card unless the person can show that he or she will be able to get the care needed in the future without relying on MassHealth or other publicly funded programs to pay for the institutional care.

4 WHEN A RELATIVE SPONSORS AN IMMIGRANT TO LIVE IN THE U.S., WILL THIS HELP THE IMMIGRANT TO PROVE THAT HE OR SHE WILL NOT NEED CASH WELFARE IN THE FUTURE? Yes. Most people who are applying for a green card must have a sponsor who can show that he or she has enough money to support the person being sponsored (at 125% of the poverty level -- $20,875 for a family of four). If the sponsor does not have enough money to do this, she will have to find a co-sponsor who is also willing to help support the immigrant. The sponsor and, if necessary, the co-sponsor, will each have to sign a legal agreement ("affidavit of support"), promising to support the immigrant until the person has credit for 40 quarters (10 years) of work in the U.S., or until the person becomes a U.S. citizen. The sponsor and co-sponsor must also agree to pay the government if the immigrant uses certain benefits during that time. This agreement will help convince the government that the immigrant will not need welfare. REFUGEES AND OTHERS NOT SUBJECT TO PUBLIC CHARGE WILL REFUGEES HAVE PROBLEMS IF THEY USE No. The public charge law does not apply to: Refugees or persons granted asylum in the U.S. Cubans or Nicaraguans applying for adjustment of status under the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) Applicants for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 Cubans applying for adjustment under the Cuban Adjustment Act who were paroled as refugees before April 1, 1980 Amerasian immigrants when they are first admitted to the U.S. Lautenberg parolees (certain Soviet and Indo-Chinese parolees applying for adjustment of status) Registry applicants (persons in the U.S. since before January 1,1972) Special immigrant juveniles Using any benefits, including cash welfare, will not cause a problem for these immigrants. PERSONS WITH GREEN CARDS WHAT CAN HAPPEN TO AN IMMIGRANT WITH A GREEN CARD WHO RECEIVES CASH WELFARE? In general, using cash welfare will not be a problem for people who already have a green card. It will not affect an immigrant s ability to become a citizen. However, it could be a problem if an immigrant travels outside of the U.S. for more than 6 months -- see the question #2 on travel below. Using non-cash benefits will not cause a problem. CAN AN IMMIGRANT WHO HAS A GREEN CARD AND RECEIVES CASH WELFARE TRAVEL OUTSIDE OF THE U.S.? If an immigrant with a green card receives SSI, TAFDC, EAEDC or other cash welfare, the person should not travel outside the U.S. for more than 180 days (about 6 months). Any time an immigrant is gone for more than 180 days, the INS can ask questions about public charge when he or she re-enters the U.S. The INS will only ask these questions if the immigrant intended to live permanently in another country, committed certain crimes, or had a pending deportation or removal case when he or she left the country.

5 CAN AN IMMIGRANT WITH A GREEN CARD RECEIVE PUBLIC BENEFITS WHILE OUTSIDE OF THE COUNTRY? If an immigrant plans to be outside of the country for more than 30 days, he or she should check with the agency providing the benefit. It may be against the rules for the person to continue receiving public benefits while outside of the U.S. It could hurt the immigrant s chances of reentering the U.S. or becoming a U.S. citizen if a person received benefits that he or she was not supposed to receive. WHEN IMMIGRANTS RETURN FROM A TRIP ABROAD, CAN THE GOVERNMENT MAKE THEM PAY BACK BENEFITS LIKE MASSHEALTH, FREE CARE OR FOOD STAMPS THAT THEY USED BEFORE THEY LEFT? No. The government is not supposed to ask immigrants to pay back benefits unless the person has received them improperly (for example, if the immigrant was not really living in this state but claimed to be a resident). If immigrants are at the airport or the border and the INS or other agency asks them to pay back benefits, they should get legal help immediately. This is true no matter what their immigration status is. CAN THE INS DEPORT AN IMMIGRANT WITH A GREEN CARD BECAUSE THE PERSON RECEIVES BENEFITS? No. The INS cannot deport an immigrant with a green card just for using public benefits that the person is qualified to receive. An immigrant cannot be deported for using benefits unless all of the following are true: The person received cash welfare or long-term institutional care for reasons that existed before he or she entered the U.S., and The person got the cash welfare or long-term care less than 5 years after he or she entered the U.S., and The person or the person s sponsor have a legal debt to the government agency that gave the person the cash or long-term care, and the person and his or her sponsor got a notice from the government that the person owed the debt within 5 years of entering the U.S., and The person or the person s sponsor have refused to repay the benefits after the government filed a lawsuit and won in court. Most programs, like SSI, and TAFDC, do not create a debt. Some programs may create a debt for the sponsor. But no sponsor who signed an affidavit of support before December 19, 1997 has a legal debt to the government for a benefit that the immigrant received. Remember, if an immigrant needs benefits because he or she became sick, had an accident or other crisis after coming to the U.S., then the immigrant cannot be deported for using those benefits. If the immigrant began using benefits more than 5 years after entering the U.S., then he or she cannot be deported even if the person or their sponsor owes the government money for these benefits. For most permanent residents, this 5-year period starts again every time the immigrant enters the U.S. after being gone for more than 180 days. IF AN IMMIGRANT HAS A GREEN CARD AND RECEIVES SSI OR OTHER CASH BENEFITS, WILL THIS STOP THE PERSON FROM BECOMING A U.S CITIZEN? No. If a person with a green card is properly receiving public benefits, the person cannot be denied citizenship for receiving benefits. But if immigrants ever got public benefits improperly, or misled the INS when they got their green card, the INS may decide that they do not have "good moral character," and they could have trouble becoming a U.S. citizen.

6 CAN U.S. CITIZENS LOSE THEIR CITIZENSHIP IF THEY RECEIVE BENEFITS? No, U.S. citizens cannot lose their citizenship if they get benefits. Once people become U.S. citizens the INS cannot deport them, and the INS must always let them re-enter the U.S. after a trip to another country. SPONSORING RELATIVES WILL PEOPLE HAVE TROUBLE SPONSORING RELATIVES IF THEY HAVE USED BENEFITS? Using benefits should not affect a person s ability to sponsor their relative. Potential sposors will need to show that they or their co-sponsor earn enough income to support their relative. To meet this requirement, they cannot count as income the benefits that they received. Currently, the affidavit of support form for sponsors asks whether the sponsor or household members have used benefits within the past 3 years. This is only to make sure that sponsors do not count any cash welfare when they add up their family s income. IF YOU ARE NOT SURE whether your client could be considered a public charge, talk to an immigration lawyer before you help your client apply for a green card or travel outside of the U.S.