Chapter 9 - Adjudicating Public Charge Inadmissibility for Adjustment of Status Applications

Officers determine whether in the totality of the circumstances, after reviewing all the factors and evidence, the applicant is likely at any time to become a public charge.^[1]

A. Evidence in the Record

In making a public charge inadmissibility determination, a USCIS officer considers evidence relevant to the statutory minimum factors;^[2] a sufficient Affidavit of Support Under Section 213A of the INA (Form I-864), where required; current and/or past receipt of public cash assistance for income maintenance or long-term institutionalization at government expense, if any; and the record as a whole, as part of a totality of the circumstances framework.

Evidence that could appear in the record as a whole, which USCIS may consider relevant in the totality of the circumstances, could include the applicant’s employment history (as stated on the Application to Register Permanent Residence or Adjust Status (Form I-485));^[3] approval for the applicant to receive public cash assistance for income maintenance or long-term institutionalization at government expense in the future; ^[4] or other relevant information.

While many noncitizens may demonstrate their income through their employment history and associated salaries, some noncitizens may have periods of unemployment. USCIS may consider the noncitizen’s employment history, in the totality of the circumstances, in the context of assessing the noncitizen’s education and skills, as well as assets, resources and financial status. However, like other factors and considerations, the fact that a noncitizen has experienced or is experiencing a period of unemployment is not alone sufficient to conclude that a noncitizen will become a public charge in the future. Also, a history of prior employment may be helpful to determine that the noncitizen has the education or skills that make it likely that they will again be employed and again earn income.

If deemed necessary in the totality of the circumstances assessment, a USCIS officer may request evidence of expected employment, including job offers with estimated salary.^[5]

1. Potential Future Receipt of Public Cash Assistance for Income Maintenance or Long-term Institutionalization at Government Expense

Although USCIS expects this to be rare, it is possible that an applicant could, on their own behalf, be certified for, or approved to receive in the future, public cash assistance for income maintenance or long-term institutionalization at government expense.

While such certification or approval would not constitute receipt of such benefits under the regulations,^[6] evidence of such certification or approval could indicate the probability of future receipt, and be considered by USCIS as probative of whether the applicant is likely to become a public charge at any time in the future. ^[7] As such, USCIS considers this certification or approval for future receipt, if any, in the totality of the circumstances.

2. Other Relevant Information

The totality of the circumstances analysis includes all information or evidence in the record before the officer that is relevant to a public charge inadmissibility determination, including forms and evidence previously submitted to USCIS.

For example, it is possible that some applicants for adjustment of status may have previously requested and received a fee waiver for a prior immigration benefit. In such a case, the officer considers this evidence in the totality of circumstances, such as by taking into account the recency and amount of the fee waiver, as well as the grounds for eligibility.^[8]

As a general matter, the most common eligibility criteria for a fee waiver are receipt of a means-tested benefit or household income below 150 percent of the Federal Poverty Guidelines (FPG), both of which would already be evident in the applicant’s responses to questions on Form I-485. If the fee waiver were requested on the basis of financial hardship, then the officer could request additional evidence on the nature and recency of such hardship in the totality of the circumstances. Note that USCIS is not collecting information about previously received fee waivers on Form I-485. However, if such information is in the record, officers may consider it in the totality of the circumstances.^[9]

3. Other Notable Circumstances Relevant in the Totality of the Circumstances

Children

The statute does not exempt children from the public charge ground of inadmissibility.^[10] As with all applicants, when making a public charge inadmissibility determination for applicants who are children, USCIS must consider all of the required factors, including current and/or past receipt of public benefits.^[11] As with any applicant, USCIS considers the recency, amount, and duration of receipt of such benefits when determining whether a child noncitizen is likely at any time to become primarily dependent on the government for subsistence.^[12]

In the rare case that a noncitizen child has received or is receiving public cash assistance for income maintenance or has been institutionalized long-term at government expense, USCIS will, consistent with the totality of the circumstances analysis, consider financial contributions of a child’s household and the circumstances that resulted in the child’s receipt of public benefits and the likelihood that those circumstances would continue in the future.

The officer should also take into account whether the benefits received were due to temporary parental unemployment or other temporary circumstances. For applicants who were long-term institutionalized at government expense while children, USCIS considers any evidence supplied by the applicant that the applicant’s condition was or is not permanent or was or can be managed through home and community-based services, as well as any evidence that the applicant was or is institutionalized in violation of their rights in the totality of the circumstances.^[13]

Benefits Received by Noncitizens During or After Pregnancy

Noncitizens who are pregnant or were recently pregnant are not exempt from the public charge ground of inadmissibility based on that pregnancy. If an applicant received or is receiving public cash assistance for income maintenance or long-term institutionalization at government expense while pregnant or recently pregnant, USCIS must consider that receipt.

However, USCIS takes the applicant’s surrounding circumstances into account when assessing whether they are likely at any time to become a public charge, including the temporary nature of pregnancy and potentially temporary nature of postpartum conditions, and how these circumstances may have impacted the applicant’s receipt of public benefits, in the totality of the circumstances.^[14]

Active-duty Service Members

Active-duty U.S. service members are not exempt from the public charge ground of inadmissibility based on that service.^[15] However, in general, very few active-duty service members use the public benefits considered in public charge inadmissibility determinations,^[16] and active-duty service members therefore generally will not be impacted by the consideration of receipt of public benefits in a public charge inadmissibility determination.

In the rare case of an active-duty service member who received or is receiving public cash assistance for income maintenance or long-term institutionalization at government expense, the officer should consider any evidence the applicant provides regarding circumstances surrounding the duration, amount, and recency of receipt, and how that may have been impacted by their service. The officer should also consider any evidence the applicant submits relating to skills they obtained through their military service.

Crime, Domestic Violence, or Other Adverse Circumstances

Noncitizens who have experienced crime, domestic violence, or other adverse circumstances may have used public cash assistance for income maintenance or long-term institutionalization at government expense but may not fall into one of the specific categories that Congress has exempted from the public charge ground of inadmissibility.^[17] Such noncitizens may choose to provide information or evidence relating to their temporary circumstances that may be relevant to a public charge inadmissibility determination.^[18] USCIS takes the surrounding circumstances into account in the totality of the circumstances.

B. Totality of the Circumstances Scenarios

Below are hypothetical examples that are intended to help illustrate a USCIS officer’s review of an applicant’s factors, circumstances, and evidence, in the totality of the circumstances. These hypotheticals are not meant to be exhaustive or all-inclusive with respect to the scenarios that may give rise to a public charge inadmissibility finding; rather they are illustrative of the process and are not meant to dictate the outcome of any particular case.

Although a USCIS officer may encounter similar fact patterns as those presented in the scenarios below, an officer may reasonably reach a different conclusion than what is described below in consideration of the totality of the individual’s circumstances. Public charge inadmissibility determinations are made in the totality of circumstances for each individual case, on a case-by-case basis.

Additionally, for purposes of the following hypothetical scenarios, it is assumed that:

• The applicant is applying for adjustment of status before USCIS and is otherwise eligible for the benefit;

• The applicant submitted the required forms and all other required supporting evidence; and

• The facts asserted are supported by evidence in the record.

Scenario 1

The applicant is a single, 25-year-old, recent college graduate living with their parent, and is currently unemployed. Their parent is currently supporting the applicant financially, and these are the only two individuals in the applicant’s household. The household’s income and net worth (assets minus liabilities) are relatively low. A sufficient Affidavit of Support Under Section 213A of the INA was submitted on behalf of the applicant. There is no information in the record to show that the applicant is receiving or has received public benefits, or has any Class A or Class B medical conditions.

The officer evaluates each of the factors USCIS considers in a public charge inadmissibility determination, and concludes that the factors do not indicate that the applicant is likely at any time to become primarily dependent on the government for subsistence. For example, the applicant’s record of current unemployment, in the totality of the circumstances, does not outweigh the other factors and considerations. As a result, the officer finds in the totality of the circumstances that the applicant has met their burden of demonstrating they are not inadmissible under INA 212(a)(4).

Scenario 2

The applicant is a single 35-year-old with no evidence of any Class A or Class B medical conditions. The applicant has one child who lives with the applicant. The applicant is a currently employed high school graduate, with moderate household income and relatively low household net worth. A sufficient Affidavit of Support Under Section 213A of the INA was submitted on behalf of the applicant. There is evidence in the record that the applicant received public cash assistance for income maintenance for a period of 1 year, over 10 years ago.

The officer evaluates each of the factors USCIS considers as part of the public charge inadmissibility determination, including the recency, amount, and duration of the past receipt of public cash assistance for income maintenance. The officer determines that the noncitizen’s combination of factors does not show that the applicant is likely at any time to become primarily dependent on the government for subsistence, in part because the applicant is currently employed, and their receipt of public cash assistance was neither recent nor long in duration. As a result, the officer finds in the totality of the circumstances that the applicant has met their burden of demonstrating that they are not inadmissible under INA 212(a)(4).

Scenario 3

The applicant is a single 55-year-old, living alone, with no evidence of a Class A or Class B medical condition. The applicant is an unemployed college graduate who has not been employed for over a decade with low income arising solely from receipt of public cash assistance for income maintenance, and low household net worth. A sufficient Affidavit of Support Under Section 213A of the INA was submitted on behalf of the applicant. The applicant indicated that they are currently receiving public cash assistance for income maintenance and have been receiving such assistance for over 5 years.

The officer evaluated each of the factors USCIS considers in a public charge inadmissibility determination and the officer determined that the combination of factors shows that the applicant is likely at any time to become primarily dependent on the government for subsistence, given that the applicant is currently receiving public cash assistance for income maintenance, has received this benefit for an extended period of time, and has demonstrated no prospect of obtaining another source of income.

As a result, even though the applicant has a sufficient Affidavit of Support under Section 213A of the INA and is in good health, the officer finds in the totality of the circumstances that the applicant has not met their burden of demonstrating they are not inadmissible under INA 212(a)(4). The officer finds that the applicant is inadmissible under INA 212(a)(4).

C. Summary: Step by Step Determination of Public Charge Inadmissibility

The officer should examine all facts and circumstances of the applicant’s case when evaluating inadmissibility for public charge.^[19] The officer should follow the steps in the table below to determine inadmissibility.

D. Decision

1. Request for Evidence or Notice of Intent to Deny

If the initial evidence submitted by the applicant does not establish eligibility or ineligibility, USCIS may issue an RFE or NOID to request more information or evidence from the applicant in accordance with USCIS policy.^[22]

If a NOID is issued, the officer must provide an explanation of the consideration of all the factors and why the officer believes that the applicant is likely at any time to become primarily dependent on the government for subsistence, based on the consideration of the totality of the applicant’s circumstances. If an officer is basing a decision in whole or in part on information of which the applicant is unaware or could not reasonably be expected to be aware, the officer must issue a NOID.^[23]

2. Not Inadmissible Based on Public Charge Ground

If, after reviewing the application for adjustment of status and supporting evidence, the officer finds that the applicant is not likely to at any time become primarily dependent on the government for subsistence based on the consideration of the totality of applicant’s circumstances, then the officer should determine that the applicant is not inadmissible based on the public charge ground. The officer should continue with the adjudication.

3. Inadmissible Based on Public Charge Ground

If, after reviewing the application for adjustment of status and supporting evidence, the officer finds that the applicant is likely at any time to become primarily dependent on the government for subsistence, then the officer should determine that the applicant is inadmissible under the public charge ground.

In this case, the officer should determine whether the applicant may be eligible to apply for a waiver or whether to offer the applicant the opportunity to post a public charge bond.^[24] If the applicant is ineligible to apply for a waiver and USCIS has decided not to offer the applicant an opportunity to post a public charge bond, then the applicant is inadmissible under the public charge ground and therefore, ineligible for adjustment of status and the officer either issues a NOID or denies the benefit request in accordance with USCIS policy.^[25]

Waiver

If the applicant is eligible to apply for a waiver, the officer should inform the applicant through the issuance of an RFE or NOID in accordance with USCIS policy.^[26] If the applicant submits a waiver and the waiver is approved, the applicant is no longer inadmissible under the public charge ground, and the officer should continue with the adjudication of the adjustment of status application, in accordance with the guidance.

Bond

If an applicant for adjustment of status is inadmissible based on the public charge ground, and USCIS offers, as a matter of discretion, the applicant an opportunity to post a public charge bond,^[27] the officer must issue a NOID in accordance with USCIS policy.^[28]

If the applicant posts the public charge bond as instructed in the NOID and USCIS accepts the bond, the officer should continue with the adjudication of the immigration benefit request, in accordance with the guidance.

Denial

USCIS officers must articulate the reasons for a finding of inadmissibility under the public charge ground based on the totality of the circumstances in the denial decision issued to the applicant.^[29] Every written denial decision issued by USCIS based on the totality of the circumstances analysis must reflect consideration of each of the factors^[30] in the public charge inadmissibility determination (other than an Affidavit of Support Under 213A of the INA when not required) and specifically articulate the reasons for the officer’s determination.^[31]

Footnotes

[^ 1] See INA 212(a)(4). See 8 CFR 212.22(b).

[^ 2] See INA 212(a)(4)(B). See Chapter 5, Statutory Minimum Factors [8 USCIS-PM G.5].

[^ 3] See 87 FR 55472, 55497 (PDF) (Sept. 9, 2022) (final rule).

[^ 4] Applying for a public benefit on one’s own behalf or on behalf of another does not constitute receipt of public benefits by such noncitizen, and approval for future receipt of a public benefit on one’s own behalf or on behalf of another does not constitute receipt of public benefits. See 8 CFR 212.21(d).

[^ 5] For more information about the consideration of a noncitizen’s totality of the circumstances, see Chapter 4, Prospective Determination Based on the Totality of the Circumstances [8 USCIS-PM G.4].

[^ 6] See 8 CFR 212.21(d).

[^ 7] See 8 CFR 212.21(d). See 87 FR 55472, 55497 (PDF) (Sept. 9, 2022) (final rule).

[^ 8] See 87 FR 55472, 55566 (PDF) (Sept. 9, 2022) (final rule).

[^ 9] See 87 FR 55472, 55566 (PDF) (Sept. 9, 2022) (final rule).

[^ 10] See INA 212(a)(4)(A).

[^ 11] See 8 CFR 212.21(b).

[^ 12] See 87 FR 55472, 55524-25 (PDF) (Sept. 9, 2022).

[^ 13] See 87 FR 55472, 55538 (PDF) (Sept. 9, 2022) (final rule). This consideration is consistent with how USCIS considers long-term institutionalization for all applicants. For more information, see Chapter 7, Consideration of Current and/or Past Receipt of Public Cash Assistance for Income Maintenance or Long-term Institutionalization at Government Expense, Section C, Long-term Institutionalization at Government Expense, Subsection 1, Home and Community-Based Services [8 USCIS PM-G.7(C)(1)] and Subsection 2, Institutionalization in Violation of Federal Law [8 USCIS-PM G.7(C)(2)].

[^ 14] See 87 FR 55472, 55524-25 (PDF) (Sept. 9, 2022).

[^ 15] See INA 212(a)(4)(A).

[^ 16] The total number of active-duty service members is publicly available in the form of a “strength summary” on the U.S. Department of Defense (DOD)’s Defense Manpower Data Center’s DOD Personnel, Workforce Reports & Publications webpage. USCIS does not consider the receipt of SNAP benefits, which are sometimes utilized by service members and their families, in the public charge inadmissibility determination. Additionally, noncitizens must generally be lawful permanent residents (LPRs) in order to join the U.S. military and LPRs are only subject to the public charge ground of inadmissibility in limited circumstances. See the USA.gov Join the Military webpage. However, under the Military Accessions Vital to National Interest (MAVNI) program, certain noncitizens who were asylees, refugees, temporary protected status beneficiaries, deferred action beneficiaries, or nonimmigrants in certain categories could enlist. DOD ceased recruiting service members through the MAVNI program in 2016. See Chapter 3, Applicability, Section A, Applicants for Admission, Subsection 3, Certain Lawful Permanent Residents Returning to the United States [8 USCIS-PM G.3(A)(3)].

[^ 17] For a list of those exempted from the public charge ground of inadmissibility, see 8 CFR 212.23 and Chapter 3, Applicability [8 USCIS-PM G.3].

[^ 18] See 87 FR 55472, 55563 (PDF) (Sept. 9, 2022).

[^ 19] See INA 212(a)(4).

[^ 20] Self-petitioners under the Violence Against Women Act (VAWA) must file Request for Exemption for Intending Immigrant's Affidavit of Support (Form I-864W) to request an exemption from the affidavit of support requirement but are not subject to the public charge inadmissibility ground. See INA 212(a)(4)(E)(i). Self-petitioning VAWA applicants (and their derivatives) are therefore not inadmissible under the public charge ground and adjudicators will not make a public charge inadmissibility determination once they determine the Form I-864W meets the requirements of the exemption.

[^ 21] Including Form I-485, Form I-864 or Form I-864EZ, and Report of Immigration Medical Examination and Vaccination Record (Form I-693). Officers may issue a Request for Evidence (RFE) to the applicant to provide them an opportunity to submit additional evidence.

[^ 22] See 8 CFR 103.2(b)(8)(i). Generally, USCIS issues written notices in the form of an RFE or NOID to request missing initial or additional evidence. However, USCIS has the discretion to deny a benefit request without issuing an RFE or NOID. See 8 CFR 103.2(b)(8)(iii). For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)], and Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [1 USCIS-PM E.9(B)(1)].

[^ 23] See 8 CFR 103.2(b)(16)(i). See 8 CFR 103.2(b)(8)(iv).

[^ 24] For more information, see Chapter 8, Waivers of Inadmissibility Based on Public Charge Ground [8 USCIS-PM G.8] and Chapter 10, Public Charge Bonds [8 USCIS-PM G.10].

[^ 25] See 8 CFR 103.2(b)(8)(iii). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 26] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 27] In accordance with 8 CFR 213.1.

[^ 28] See 8 CFR 103.2(b)(8)(iii). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 29] See 8 CFR 212.22(c). See 8 CFR 103.3(a)(1)(i). For more information about the consideration of the totality of the circumstances, see Chapter 4, Prospective Determination Based on the Totality of the Circumstances [8 USCIS-PM G.4].

[^ 30] See 8 CFR 212.22(a).

[^ 31] See 8 CFR 212.22(c) and 8 CFR 212.22(a). For more information about the factors considered in a public charge inadmissibility determination, see Chapter 5, Statutory Minimum Factors [8 USCIS-PM G.5], Chapter 6, Affidavit of Support Under Section 213A of the INA [8 USCIS-PM G.6], and Chapter 7, Consideration of Current and/or Past Receipt of Public Cash Assistance for Income Maintenance or Long-term Institutionalization at Government Expense [8 USCIS-PM G.7].