Applicability of Public Charge and Deeming Rules to Immigrant Survivors and Their Children Eligible for Healthcare Subsidies

Posted on by Zoe Morgan

Public Charge

Immigrant survivors may be reticent to seek healthcare subsidies that they and their children are eligible for because they are concerned that seeking subsidized healthcare will prevent them from becoming lawful permanent residents under public charge laws. The public charge ground of inadmissibility refers to the barring of a foreign national from obtaining lawful permanent resident status if he or she is likely to become a public charge. Under the Violence Against Women Reauthorization Act of 2013, immigrant crime victims who pursue immigration relief such as VAWA self-petitioning, battered spouse waiver, VAWA cancellation of removal, VAWA suspension of deportation, U visa and T visa are exempt from public charge ever affecting their applications for lawful permanent residency or any other immigration benefit. Thus, immigrant survivors can seek and receive publicly funded healthcare or other benefits for themselves and their children without any concern being determined to be a public charge.

For immigrant crime victims and other immigrants who pursue other paths to lawful permanent residency, it is important to note that, with one exception, obtaining healthcare subsidies that they or their children are eligible to receive will not cause the immigrant to be denied lawful permanent residency on the basis of public charge. Medicaid, Medicare, and other similar health services are excluded from the publicly funded programs DHS is allowed to consider when making public charge determinations. The only form of healthcare benefit that would lead to a finding that the immigrant is likely be a public charge and should, therefore, be inadmissible for lawful permanent residency would be institutionalization for long-term care at the government’s expense, since the immigrant would be primarily dependent on the government for support for such an extended period of time.

For further information on immigrant crime victims and public charge, see Catherine Longville & Leslye Orloff, Immigrant Crime Victims and Public Charge: Post-VAWA 2013 (June 20, 2014)

The Public Charge Regulations that codify public charge law prior to the VAWA 2013 amendments that apply in all cases other than VAWA, T and U visa applicants

Deeming

“Deeming” refers to the practice of counting the income of an immigrant’s sponsor together with the immigrant’s own income in determining financial eligibility for state or federal public benefits programs. Deeming applies to spouses and children with family based immigration cases. Certain immigrants are exempt from sponsor deeming. Exempt immigrants include immigrants who are not required to have sponsors, including, but not limited to: refugees; asylees; parolees; Cuban Haitian entrants; immigrants who have naturalized; immigrants whose sponsor has died; certain qualified battered spouses and children; indigent immigrants who would go hungry or homeless without assistance; and immigrants who have or can be credited with 40 quarters of work credit. Additionally, for states that choose to provide subsidized healthcare to lawfully residing children and/or pregnant women, deeming does not apply.

Exemption from Deeming for Certain Qualified Battered Immigrants

When the person who sponsored the immigrant is also the immigrant’s abusive spouse or parent, the immigrant victim will not be able to access the income of the abuser when applying for benefits. Counting the abusive spouse or parent’s income as income that is attributed to the immigrant victim results in the immigrant victim losing access to public benefits eligibility that Congress intended they receive.

To address this issue, Congress included a specific exemption from deeming for certain qualified battered immigrants. Qualified battered immigrant spouses and children of citizen and lawful permanent residents can be exempt for one year from the deeming requirements if:

  • The battery or extreme cruelty took place in the United States;
  • The abuser was the spouse, parent, or member of spouse’s or parent’s family;
  • There is a “substantial connection between the battery or extreme cruelty and the need for the healthcare benefit;” and
  • The victim no longer resides with the abuser.

This qualified battered immigrant exemption can extend beyond a year, the battered immigrant must demonstrate that:

  • An order of a judge or a prior DHS determination has recognized the battery or extreme cruelty; and
  • There continues to be a substantial connection between the abuse and battery suffered and the need for the benefits sought.

For more information on the issue of deeming, and on the issue of the battered immigrant exemption to deeming, please see the following resources:

  1. Catherine Longville and Leslye Orloff, Public Benefits: What is “Deeming” and What are its Exceptions
  2. Soraya Fata, Leslye E. Orloff and Monique Drew, Access to Programs and Services that Can Help Victims of Sexual Assault and Domestic Violence
  3. Tanya Broder and Jonathan Blazer, Overview of Immigrant Eligibility for Federal Programs (October 2011)

© 2015 National Immigrant Women’s Advocacy Project. The contents of this publication may be reprinted. Any reprinting must be accompanied by the following acknowledgement: This material was reprinted from the National Immigrant Women’s Advocacy Project, American University, Washington College of Law.

This project was developed under grant number 2013-TA-AX-K009 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions and recommendations expressed in this program are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.