Non-Exhaustive List Of Public Benefits That USCIS Does Not Consider In The Public Charge Inadmissibility Determination

Category: General Immigration By: Marc Taylor

B. Public Benefits Not Considered

1. Unenumerated Public Benefits

The following is a non-exhaustive list of public benefits that USCIS does not consider in the public charge inadmissibility determination as they are considered earned benefits:^[20]

Federal Old-Age, Survivors, and Disability Insurance Social Security benefits (SSDI);
Social Security;
Veteran’s benefits including but not limited to HUD-VASH, and medical treatment through the Veteran’s Health Administration;
Government (including federal and state) pension benefits and healthcare;
Unemployment benefits;
Worker’s compensation;
Medicare; or
Federal and state disability insurance.

Other benefits not considered public benefits in the public charge inadmissibility determination include, but are not limited to:

Any services provided under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act);^[21]
Benefits under the Emergency Food Assistance Act (TEFAP);^[22]
Child and Adult Care Food Program (CACFP);
Food Distribution Program on Indian Reservations (FDPIR);
Short-term, non-cash, in-kind emergency disaster relief;
Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) provided by local communities or through public or private nonprofit organizations;
Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease;
Attending public school;
Benefits though school lunch or other supplemental nutrition programs including:
- Benefits through the Child Nutrition Act;^[23]
- Benefits from the National School Lunch Act;^[24]
Summer Food Service program;
Child care related services including the Child Care and Development Block Grant Program (CCDBGP);^[25]
Special Supplemental Nutrition Program for Women, Infants, and Children (WIC);^[26]
Children’s Health Insurance Program (CHIP) and State Children’s Health Insurance Program (SCHIP);^[27]
Health Insurance through the Affordable Care Act;
Tax Credits;
Transportation vouchers or other non-cash transportation services;
Housing assistance under the McKinney-Vento Homeless Assistance Act;^[28]
Energy benefits such as the Low Income Home Energy Assistance Program (LIHEAP);^[29]
Educational benefits, including, but not limited to, benefits under the Head Start Act;^[30]
Student loans and home mortgage loan programs; and
Foster care and adoption benefits.

As there are multiple federal and state public benefits programs, USCIS is unable to list all programs not included within the public charge inadmissibility determination.

2. Medicaid Exclusion

USCIS does not consider the following Medicaid^[31] benefits for purposes of the public charge inadmissibility determination:

Benefits paid for an emergency medical condition;^[32]
Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);^[33]
School-based benefits provided to children who are at or below the oldest age of children eligible for secondary education as determined under State law;
Benefits received by an applicant under the age of 21; and
Benefits received by a pregnant applicant, including the period during the pregnancy and 60 days after the end of the pregnancy.

Emergency Medical Condition

“Emergency medical condition means a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”^[34] States determine whether an illness or injury is an “emergency medical condition” and provide payment to the healthcare provider as appropriate. “Emergency medical services” are often involuntary and must be provided by doctors and hospitals regardless of the ability to pay,^[35] such as medical services at a hospital after a car accident.

The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) sets apart treatment for emergency medical conditions and makes funds available for the reimbursement of states regardless of an alien’s immigration status, and regardless of whether or not an alien would be subject to public charge ground of inadmissibility^[36] or other grounds of inadmissibility.^[37] Congress intended that PRWORA exceptions be applied generally, and treatment of emergency medical conditions in particular, be narrowly construed. To qualify for emergency medical condition exclusion, medical conditions must be of an emergency nature, such as:

Medical treatment administered in an emergency room;
Critical care unit or intensive care unit;
Pre-natal or delivery care assistance; or
Treatment for mental health in which the alien’s condition is such that he is a danger to himself or to others and has therefore been judged incompetent by a court of appropriate jurisdiction.^[38]

Depending on the state, and the medical condition, categorization as an “emergency medical condition” for purposes of Medicaid reimbursement may not be limited to hospital emergency room visits as defined by state case law. This may depend on the state which provided the emergency medical care. The applicants must provide information from the state indicating that the medical condition and use of the public benefit was for an emergency medical condition. The following are examples of how states have categorized conditions as emergency medical condition.

The following are examples of states determining whether the Medicaid is provided for an emergency medical condition:

Connecticut included leukemia that had “reached a crisis stage” and required “immediate medical treatment, without which the patient’s physical well-being would likely be put in jeopardy or serious physical impairment or dysfunction would result.”^[39] However, permanent dialysis treatment was not an “emergency medical condition.”^[40]
North Carolina indicated that acute lymphocytic leukemia was not an “emergency medical condition” where there was nothing to indicate that the prolonged chemotherapy treatments must have been “immediate” to prevent placing the alien’s health in serious jeopardy, or causing serious impairment or dysfunction.^[41]
North Carolina included continued medical services for a cancer patient who underwent surgery after presenting at a hospital’s emergency room with weakness and numbness in the lower extremities.^[42]
In the Second Circuit, aliens who suffered serious traumatic head injuries initially satisfied the definition of emergency medical treatment, but the subsequent continuous and regimented care did not constitute emergency medical treatment pursuant to the statute.^[43]
Arizona included rehabilitative type ward after initial injury as an emergency medical condition.^[44]
Pennsylvania excluded care from rehabilitation and health care centers from being considered as part of emergency medical condition treatment even though the alien could eventually suffer another stroke or other medical problem; coverage was not being sought for an acute condition, but for long term or open-ended nursing care.^[45]

Individuals with Disabilities Education Act^[46] and School-Based Benefits

USCIS does not consider the Individuals with Disabilities Education Act (IDEA)^[47] and school-based benefits provided to children who are at or below the oldest age of children eligible for secondary education as determined under state law as public benefits in the public charge inadmissibility determination. Parents provide consent for school districts to release personally identifiable information to a state public insurance program (for example, Medicaid) for billing purposes. The applicant would submit such consent document or documentation from the school to identify the Medicaid benefit as provided under the IDEA or other school-based benefit.

Aliens under the Age of 21 and Pregnant Women

Congress, through Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA),^[48] expanded the Medicaid coverage for children and pregnant women who are lawfully residing in the United States, including those within their first 5 years of having certain legal status.

For public charge inadmissibility purposes, USCIS does not consider receipt of Medicaid by children under 21 and pregnant women during pregnancy and 60 days following pregnancy.

3. Children Acquiring Citizenship

For public charge inadmissibility purposes, USCIS does not consider any public benefits received by:

Children of U.S. citizens whose lawful admission for permanent residence and subsequent residence in the legal and physical custody of their U.S. citizen parent will result automatically in the child’s acquisition of citizenship, upon meeting the eligibility criteria for acquisition of citizenship;^[49] or
Children of U.S. citizens whose lawful admission for permanent residence will result automatically in the child’s acquisition of citizenship upon finalization of adoption (if the child satisfies the requirements applicable to adopted children)^[50] in the United States by the U.S. citizen parent(s), upon meeting the eligibility criteria for acquisition of citizenship;^[51] or
Children, residing outside the United States, of U.S. citizens who are entering the United States for the purpose of attending an interview.^[52]

4. Benefits Received by Members of the U.S. Armed Forces and their Spouses and Children

Alien military service members and their families are subject to the public charge inadmissibility determination. However, USCIS does not consider any public benefit received by a person enlisted in the U.S. armed forces,^[53] or serving in active duty or in the Ready Reserve component of the U.S. armed forces in the public charge inadmissibility determination. In addition, public benefits received by the spouse or child of a service member^[54] are not considered a public benefit in the public charge inadmissibility determination. This is applicable regardless of the service member’s immigration status.

5. State Non-Cash Benefits

USCIS does not consider any state funded non-cash benefit which may include health insurance, or social services programs as public benefits to be considered within the public charge inadmissibility determination. For example, the following public benefit would not be considered in the public charge inadmissibility determination: