On May 26, 1999, the INS issued a proposed regulation that would define what is a "public charge" for the first time. The purpose of the regulation is to clarify what public benefits an immigrant may receive without becoming a "public charge," a status that prevents one from adjusting status to legal permanent resident, and subjects one to deportation. It is also hoped the regulation will lead to increased consistency in agency decision making.

While the concept of "public charge" has been a part of U.S. immigration law for more than 100 years, it has never been defined by any law or regulation. However, the immigration consequences of being labeled a "public charge" are very serious. One likely to become a public charge in the U.S. is inadmissible, and cannot become a legal permanent resident. Furthermore, anyone found to have become a public charge within five years of admission is subject to deportation.

Recent changes in immigration laws have led to great confusion as to what benefits will cause one to be considered a "public charge." The result of this has been that immigrants have not sought benefits for which they are eligible for fear of damaging their chances of becoming an LPR. One of the purposes of the new regulation is to prevent this situation from continuing.

The regulation would define "public charge" as an alien who is or is likely to become "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." This definitions, however, is not the end of the "public charge" inquiry. Other factors the agency is to consider are the applicant’s age, health, family status, assets, resources, financial status, education and employment skills. No single factor is to be determinative.

Certain programs that are not intended to function as income maintenance programs are not to be considered in the "public charge" inquiry. Among these programs are Medicaid, Children’s Health Insurance Program, food stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), public healthcare benefits such as immunization and prenatal care, as well as emergency medical assistance, housing, educational and job-training assistance programs, and emergency disaster relief.

Among the programs that will render a beneficiary a "public charge" are Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF), and other state and local cash assistance programs.

While an alien who is a "public charge" is subject to deportability, the alien has an opportunity to avoid deportation by repaying the benefits. Even if the alien has not repaid the benefits, he can avoid deportation by showing receipt of the benefits was required by a condition that arose after entry to the U.S.

The rule is being implemented immediately, through field guidance memoranda being issued to INS offices and other guidance being sent to consular offices by the Department of State. However, the rule is still under consideration, and the INS is seeking public comments for 60 days.