After receiving a number of complaints about immigration officers asking aliens to repay public benefits before being admitted to the US, the INS has issued a memorandum addressing the issue. Immigration officers have been justifying the requests based on the "public charge" ground of inadmissibility under Section 212(a)(4) of the Immigration and Nationality Act.

In a memorandum dated December 16th, the INS states that "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."

The INS was careful to note, however, that having received public benefits in the past can be considered in the "totality of the circumstances" used to consider whether an applicant is likely to become a public charge. But, nevertheless the INS does not have the authority to request as part of the inspections process that aliens repay public benefits. That responsibility lies with the agency that provided the benefit.

The only time when repayment of public benefits is relevant, according to the memorandum, is when the applicant has an outstanding public debt based on receipt of a public benefit that would render the alien deportable on public charge grounds. The INS officer will use a three part test to make this determination:

1. If there is a legal obligation to repay the debt;

2. there must be a demand for repayment by the benefit-granting authority; and

3. there must be a failure to pay by the alien.

The INS expects the test to rarely be satisfied.

The INS also noted in the memo that lawful permanent residents are not subject to the grounds of inadmissibility unless they have been outside the country more than six months and they should not routinely be questioned on issues related to the likelihood that they will become a public charge.

The 180 day provision noted above has been the source of a great deal of confusion in the immigrant community. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Immigration and Nationality Act was amended to read as follows:

"(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien--

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having departed the United States,

(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,

(v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or

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

While many people think this is a new policy, it actually represents the formal codification of an issue that has been heavily litigated since the 1960s. In the case of Rosenberg v. Fleuti, the Supreme Court ruled that a lawful permanent resident returning to the U.S. from a trip abroad will not be considered to make a new entry upon her return if her trip was "innocent, casual and brief" and not meant to be "meaningfully interruptive" of her status. Congress has now set a specific time limit after which a lawful permanent resident is considered to be making a new application for admission.

The new law does not say that a lawful permanent resident is barred from entering the country if out more than six months. It does mean, however, that if a permanent resident would otherwise be inadmissible but for the permanent residency status (such as on public charge or health grounds), then the person can be denied entry into the US. Many people mistakenly believe that staying out of the US for six months is equivalent to abandoning permanent residency. The rules on this subject have not changed under the new law. And theoretically, it remains possible for a person who has left the US for LESS than 180 days to be considered to have abandoned status.