INS on LPRs, Public Charge Issues

Subject: Public Charge: INA Sections 212(a)(4) and 237(a)(5) - Duration of Departure for LPRs and Repayment of Public Benefits

Date: December 16, 1997

To: All Regional Directors
All District Directors (Including Foreign)
All OICs (Including Foreign)
All Port Directors
All Service Center Directors
All Training Academies (Glynco and Artesia)
All Regional Counsels
All Asylum Directors

From: Office of Programs
Office of Field Operations

INS Headquarters has received a number of inquiries about questions being asked of aliens presenting themselves for inspection at Ports of Entry. To help clarify appropriate procedures, this memorandum provides guidance concerning two issues related to the "public charge" ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act (INA): (i) the Service does not have authority to require or request during the inspections process that aliens (lawful permanent residents or other aliens) repay public benefits; and (ii) with limited exceptions, lawful permanent residents who have been outside the United States 180 days or less are not subject to the grounds of inadmissibility (pursuant to section 101(a)(13)(C)), and therefore should not routinely be questioned on issues related to the likelihood that they will become a public charge.

More comprehensive guidance on the application of the public charge grounds of inadmissibility and the related ground of deportation, section 237(a)(5) of the INA, will be issued separately.

1. General

Except for the new requirements concerning the enforceable affidavit of support, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) has not altered the standards used to determine the likelihood of an alien to become a public charge nor has it significantly changed the criteria to be considered in determining such a likelihood. The law remains that all aliens seeking admission are inadmissible, and therefore subject to removal under the provisions of section 212(a)(4), if they are likely at any time to become public charges.

2. Repayment of Public Benefits

As a general rule, an alien is not required to repay public benefits received in the past in order to avoid being found inadmissible as a public charge. Likelihood to become a public charge is a prospective determination pursuant to Section 212(a)(4), based on consideration of the totality of the circumstances. The Service does not have the authority to request as a part of the inspections process that aliens (lawful permanent residents or other aliens) repay public benefits. The responsibility for recouping public benefits lies with each benefit-granting agency, pursuant to its own standards and procedures. Therefore, officers should not in any way suggest that an alien must repay public benefits in order to be admitted, and should discuss the issue with aliens only in the limited circumstances described in the following paragraph.

Under the totality of the circumstances test pursuant to Section 212(a)(4), an alien who would be deportable as a public charge under Section 237(a)(5) is inadmissible. Repayment of public benefits is therefore relevant to the Service's public charge inadmissibility determination only if at the time of application for admission or adjustment of status the alien has an outstanding public debt based on receipt of a public benefit that would render the alien deportable on public charge grounds under section 237(a)(5). Only a debt that satisfies the three-part test used by the Service (under case law of the Board of Immigration Appeals) in applying section 237(a)(5) will render an alien a public charge upon admission: (i) there must be a legal obligation to repay the debt; (ii) there must be a demand for repayment by the benefit-granting authority; and (iii) there must be a failure to pay by the alien. If a public debt that meets these criteria is paid, then the alien will no longer be inadmissible based on the debt.

As a practical matter, there will be few instances where aliens are inadmissible based on an outstanding public debt, either because there is no legal obligation to repay a particular benefit or because no demand for repayment has been made by the affected agency.

3. Lawful Permanent Residents who depart the United States for 180 days or less

IIRAIRA amended section 101(a)(13) of the INA to codify the criteria for determining whether a returning lawful permanent resident is to be considered an applicant for admission, a question previously addressed under the Fleuti doctrine. Rosenberg v. Fleuti, 374 U.S. 449 (1963). Under section 101(a)(13)(C), a lawful permanent resident who has been absent from the United States for 180 days or less is not considered an applicant for admission, unless special circumstances (described below) apply.

Since the vast majority of lawful permanent residents seeking reentry to the United States at a Port of Entry after an absence not exceeding 180 days are not applicants for admission, the grounds of inadmissibility under section 212 --- including inadmissibility based on the likelihood of becoming a public charge -- do not apply to them. Accordingly, lawful permanent residents returning after a departure of no more than 180 days should not be questioned with respect to their likelihood to become a public charge within the meaning of INA section 212(a)(4), unless there is evidence that they fall into one of the special categories of returning lawful permanent residents considered applicants for admission. Some questions with respect to past receipt of public benefits may be relevant at the time of inspection, but only in deciding whether such a lawful permanent resident has become deportable under INA section 237(a)(5), pursuant to the three-part test outlined in part 2 above.

The only circumstances in which a lawful permanent resident who has been absent from the United States for 180 days or less would be considered an applicant for admission -and therefore subject to the public charge grounds of inadmissibility -- are as follows:

* the alien has abandoned or relinquished his or her status;

* the alien has engaged in illegal activity since departing the United States;

* the alien departed the United States under legal process seeking his or her removal from the United States;

* the alien has committed an offense identified in section 212(a)(2), unless he or she has been granted relief under section 21 2(h) or 240A(a); or

* the alien is attempting to enter at a time or place other than as designated or has not been admitted to the United States after inspection and authorization by an immigration officer.

Please also note that a lawful permanent resident who has been outside the country for more than 180 days, but less than one year, is not required to have a reentry permit. The alien may present his or her I-551 as evidence of lawful permanent resident status.

If there are any additional questions, contact Mary Ellen McCarthy Elwood, HQOPS, at 202/514-9349.

Paul W. Virtue
Executive Associate Commissioner
Office of Programs

Michael A. Pearson
Executive Associate Commissioner
Office of Field Operations