§ 7.1 Introduction

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 7.1 INTRODUCTION

§ 7.1-1 What Are Public Benefits and Why Are They Important?

Public benefits are the government-sponsored "safety net" programs that reduce the number of people living in poverty and ease the hardships endured by those who live in poverty.

NOTE: For more information on how public benefits programs affect poverty and rates of medical coverage, see Center on Budget and Policy Priorities, Chart Book: Economic Security and Health Insurance Programs Reduce Poverty and Provide Access to Needed Care (Dec 11, 2019), < www.cbpp.org/research/poverty-and-inequality/chart-book-economic-security-and-health-insurance-programs-reduce >.

Some public benefits are means-tested programs that target individuals with low incomes. The means-tested programs include Temporary Assistance for Needy Families (TANF) (see § 7.2-2(d) to § 7.2-2(d)(1)), Supplemental Nutrition Assistance Program (SNAP) (see § 7.2-2(a)), Medicaid (see § 7.2-2(e)), Supplemental Security Income (SSI) (see § 7.5-1 to § 7.5-2), and refugee assistance (see § 7.2-2(f)). Other public benefits do not base eligibility on income or resources. These include Social Security retirement, Medicare, unemployment compensation, and workers' compensation.

NOTE: For additional discussion of immigrant eligibility for public assistance, see Tanya Broder, Avideh Moussavian & Jonathan Blazer, Overview of Immigrant Eligibility for Federal Programs (Dec 2015), < www.nilc.org/issues/economic-support/overview-immeligfedprograms >; and National Immigration Law Center, Guide to Immigrant Eligibility for Federal Programs (4th ed 2002), < www.nilc.org/issues/economic-support/guidefed > (available for download; includes link to an "Update Page").

This chapter will focus on public benefit programs administered by the Social Security Administration and programs administered by the Oregon Department of Human Services (DHS). Unemployment compensation and workers' compensation are discussed in chapter 4 (Employment Issues).

PRACTICE TIP: There are many new programs and changes to existing programs described in this chapter due to state and federal responses to the COVID-19 pandemic. These programs were in nearly constant flux at the time of this writing. Careful review of the programs, benefits, and eligibility requirements will be needed to make sure that the information you provide to clients is correct. For a quick reference guide to immigrant eligibility for COVID-19-related benefits, see < https://protectingimmigrantfamilies.org/immigrant-eligibility-for-public-programs-during-covid-19 >.

Additionally, U.S. Citizenship and Immigration Services (USCIS) issued an alert in response to the COVID-19 pandemic to clarify that medical treatment sought for COVID-19 testing and treatment would not count against an immigrant in the immigrant's public-charge test (see § 7.1-2(a)), and that the use of other public benefits that are considered in the public-charge test would be considered in the light of the COVID-19 emergency. Notably, the agency did not state that that those benefits would not count in a public-charge test, only that the COVID-19 emergency circumstances would be considered as part of the totality of the circumstances. See U.S. Citizenship and Immigration Servs, Public Charge, < www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge >.

§ 7.1-2 Risks That Foreign Nationals Face in Applying for or Receiving Public Benefits

Many noncitizens are afraid to apply for or receive public benefits. Some refuse to apply for benefits that they are likely eligible for because they believe they will not be able to become citizens in the future. Those who are not eligible for benefits, but who have a spouse or a dependent child who is, share this fear. And those without any legal status are understandably concerned about arrest and deportation. In some cases these fears are justified, but in other cases, people who are eligible, including U.S. citizens, needlessly forgo important benefits. In § 7.1-2(a) to § 7.1-2(b), this chapter addresses two of the primary causes of concern for immigrants.

§ 7.1-2(a) Public Charge

The attempt to exclude immigrants who are, or are likely to become, a "public charge" has been a part of federal immigration policy for over a hundred years. See, e.g., Act of 1891, 26 Stat 1084, 51 Cong ch 551. Over the years, Congress has given immigration officials the power to deny admission to or remove immigrants who are determined to be, or are likely to become, a public charge. An immigrant who is deemed likely to become a public charge is inadmissible and ineligible to become a lawful permanent resident (LPR) of the United States. 8 USC § 1182(a)(4)(A). Also, an immigrant can be removed from the United States if, within five years of entering the United States, the immigrant becomes a public charge from causes that existed before entry. 8 USC § 1227(a)(5).

NOTE: Title 8 of the United States Code codifies the Immigration and Nationality Act of 1952, Pub L 82-414, 66 Stat 163 (as amended) (INA). The regulations and many attorneys refer to the section numbers from the INA, as opposed to the section numbers of the INA's codification in the Code. See 8 CFR §§ 1.1-1.2. For example, INA §101 (as amended) is codified at 8 USC § 1101, and INA § 214 (as amended) is codified at 8 USC § 1184. See the INA Codification Table at the end of this book.

The INA does not define the term public charge, but for roughly two decades, agency guidance has defined public charge as someone who is "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." Inadmissibility and Deportability on Public Charge Grounds, 64 Fed Reg 28,676, 28,677 (May 26, 1999); see 9 Foreign Affairs Manual (FAM) 302.8-2(B)(1), < https://fam.state.gov/FAM/09FAM/09FAM030208.html >. The inquiry into whether a noncitizen is likely to become a public charge, in "the opinion" of the immigration officer, is based on the "totality of the alien's circumstances" at the time of admission or adjustment of status. 8 USC § 1182(a)(4)(A); Matter of Perez, 15 I & N Dec 136, 137 (BIA 1974). In making that determination, the immigration officer "shall at a minimum" consider the person's age, health, family status, assets and resources, education, and...