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Maintaining Eligibility for Permanent Residence for EB-5 Investors: Accepting Public Benefits

Posted in EB-5, EB-5 Immigrant Investor Program, EB-5 Legislation, I-829, Immigrant Investor, Immigrant Visa, Immigration, Immigration Law, Immigration Reform, President Trump's Administration, USCIS, Visa

This is the fifth post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence and I-829 Petition approval. This blog focuses on accepting certain public benefits that may make an investor and/or his or her dependents a “public charge.”

The Trump Administration has stated that USCIS will start deportation proceedings for any conditional permanent resident or lawful permanent resident who has abused any program related to receipt of public benefits. Additionally, conditional permanent residents and lawful permanent residents alike cannot be a “public charge.” This means an individual who 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 the government’s expense.

USCIS can make a “public charge” finding at the time of the immigrant visa interview for the conditional green card and at the I-829 Petition interview. A finding that the investor or a family member is a “public charge” can lead to denial of the immigrant visa or the I-829 Petition, and commencement of deportation proceedings following the I-829 Petition denial.

Acceptance of the following types of assistance may lead to the determination that the individual is likely to become a public charge:

  • Supplemental Security Income (SSI) under Title XVI of Social Security Act;
  • Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program);
  • State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs); and
  • Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution).

Under current USCIS guidance, non-cash benefits (other than institutionalization for long-term care) are generally not taken into account for purposes of a public charge determination. Non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination at present. Non-cash or special purpose cash benefits that are not considered for public charge purposes include:

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care;
  • Children’s Health Insurance Program (CHIP);
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs;
  • Housing benefits;
  • Child care services;
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
  • Emergency disaster relief;
  • Foster care and adoption assistance;
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education;
  • Job training programs; and
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter).

The Trump Administration is attempting to expand the list of government benefits that could lead to a public charge finding. Specifically, the administration may expand list of “public charge” benefits to include Medicaid, subsidized Obamacare, food stamps, tax credits, or other non-cash government benefits. If an EB-5 investor and/or his or her dependents receive any of these benefits, and then the administration adds those benefits to the list of “public charge” benefits, USCIS may seek to deny the I-829 Petition. As such, EB-5 investors and their family members should try to avoid receiving these benefits following the grant of CPR status. Insurance paid for in the marketplace under the Affordable Healthcare Act should not result in a public charge finding.