Introduction
Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation.  An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident.  However, receiving public benefits does not automatically make an individual a public charge. This fact sheet seeks to inform non-citizens about public charge determinations and help them to make informed choices about whether to apply for certain public benefits.

Background
Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge."   If an individual is inadmissible, admission to the United States or adjustment of status is not granted.  
Immigration and welfare laws have generated some concern about whether a non-citizen may face adverse immigration consequences for having received Federal, state, or local public benefits.  Some non-citizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge.

Q: What is the Definition of Public Charge?

A: For purposes of determining inadmissibility, agency guidance has, since 1999, defined “public charge” to mean 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 government expense.” See “Field Guidance on Deportability and Inadmissibility on  Public Charge Grounds,” 64 FR 28689 (May 26, 1999).  In determining whether an alien meets this definition for public charge inadmissibility, a number of factors must be considered, including age, health, family status, assets, resources, financial status, education, and skills.  No single factor - other than the lack of an affidavit of support, if required -  will determine whether an individual is a public charge. 

Q: What Benefits Are Subject to Public Charge Consideration?

A: The agency guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and State or local cash assistance programs for income maintenance, often called “General Assistance” programs.  Acceptance of these forms of public cash assistance could make a non-citizen inadmissible as a public charge, if all other criteria are met.  However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds.  See “Field Guidance on Deportability and Inadmissibility on  Public Charge Grounds,” 64 FR 28689 (May 26, 1999).  Each determination is made on a case-by-case basis in the context of the totality of the circumstances.
In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as part of the public charge analysis of the totality of the circumstances.  Short-term institutionalization for rehabilitation is not subject to public charge consideration. 

Q: What Benefits Are Not Subject to Public Charge Consideration?

A: Under the agency guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration.  Such benefits 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, prenatal care, 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
• In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
• Non cash benefits under TANF such as subsidized child care or transit subsidies
• Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans' benefits, among other forms of earned benefits, do not support a public charge determination.
• Unemployment compensation is also not considered for public charge purposes 
Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF.  Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for on-going cash assistance for income maintenance, they are not subject to public charge consideration.

H-1B Visas: Temporary Worker Visas
Professionals Working in the United States

The H-1B non-immigrant visa may be used to bring a worker temporarily to the United States if the employee will work in a “specialty occupation” or a professional position.  USCIS is authorized to approve 65,000 H-1B visa petitions per year, but many H-1B employers and workers are exempt to the numerical limitation.  Most J-1 physicians are exempt from the cap as are most H-1B physicians during residency training.

Q: What Does the Employer Do?

A: Qualifying as a U.S. Employer
            The employer must have a U.S. taxpayer identification number.

Obtaining an approved Labor Certification Application
The employer must prepare and file a Labor Condition Application (LCA) with the Department of Labor (DOL).  The LCA must be carefully prepared and posted in at least two conspicuous places at each work site.  The form requires the employer to describe the position, the salary, and the source used to obtain the prevailing wage for the occupation.  The LCA also requires the employer to attest to complex facts concerning the wages, hours, and working conditions for the position.

Pursuant to the LCA the employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees.  Upon request, these records must be provided to the DOL.

If an employer does not document the wage, pay the required wage or maintain the required records, the employer could be liable for substantial penalties including back pay and fines.  The employer could even lose the right to file for H-1B petitions as well as other immigrant and non-immigrant petitions for up to one year.

If the employer terminates the employee before the H-1B expires, the employer is responsible for paying for the employee’s return transportation to his or her last foreign residence.

Q: What Does the Employee Do?

A: The employee must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer at the time the petition is filed.  The employee must be able to show that his or her foreign university degree is the equivalent to a U.S. degree by obtaining a credentials evaluation of his or her education.

If the worker is in the U.S. and currently holds a valid nonimmigrant visa status, he or she may apply in the U.S.  For a change of status to H-1B status.  For example, if he or she is in lawful student status (F-1), or exchange visitor (J-1) status, the worker may seek a change from F-1 to H-1B.  This change gives the person the ability to work in the U.S. for the sponsoring employer.  If the worker needs to travel abroad, he or she will still need to apply for an H-1B visa at an American consular post outside the United States to return.  Workers not in lawful status in the U.S., or those residing abroad must apply for an H-1B visa at an American consular post.  Those with J-1 status must obtain a waiver of the two year residence requirements if applicable, before applying for a change of status from J-1 to H-1B.

Q: How Long Can the H-1B Employee Remain in the U.S.?

A: The H-1B is a temporary visa with specific limitations on periods of stay in the United States.  The initial petition may be approved for up to three years and the Employer may file for an extension for up to three years. 

After six years, the worker must spend one year outside the United States befoe he or she is entitled to be granted H-1B or L status.  There are several circumstances where the six-year limit may be waived.  Many workers with H-1B status obtain permanent residence (“green cards”) during their initial six-year stay in the U.S. It is advisable to consult with competent immigration counsel at the start of the H-1B process to plan a comprehensive strategy for visa and permanent residence goals.

The H-1B employee’s spouse and unmarried children under 21 years old may be granted H-4 status.  An H-4 visa holder is not permitted to work in the United States, but may, attend school.

Q: How Does Premium Processing For H-1B Petitions Work?

A: The USCIS provides a service known as Premium Processing which offers faster processing times for certain employment-based nonimmigrant petitions and applications, such as H-1Bs.

For an additional fee of $1,000 the USCIS guarantees that within 15 calendar days of receipt of the H-1B petition, they will issue an approval notice, a notice of intent to deny, a request for evidence or a notice of investigation for fraud or misrepresentation.  Premium Processing may be request on pending or newly filed petitions.  If USCIS fails to meet its 15 day calendar day guarantee, it will refund the $1,000. 

It is possible to upgrade an H-1B petition from premium processing to regular processing after the H-1B petition is filed.

Q: What is the H-1B Cap And How Does It Work?

A: In recent years, there has been an annual cap of 65,000 H-1B visas available.  An additional 20,000 H-1B visa numbers were added to the pool for foreign nationals who possess graduate degrees from U.S. educational institutions.  In addition, there is a separate pool of H-1B visas for Singapore and Chilean nationals.  The H-1B cap for FY 2008 (October 1, 2007 through September 30, 2008) was reached on April 27, 2007, the first day USCIS accepted applications and a lottery was conducted to allocate the visa numbers.

This means that H-1B petitions for aliens already in H-1B status who have been counted against the cap in the preceding six years and who are changing employers, taking a second job, changing the terms of employment, or extending their stay are exempt from the cap.  Petitions can be filed for new employment by institutions of higher education, governmental research organizations, and non-profit affiliates of institutions of higher education (e.g. – university teaching hospitals, and many community and rural health centers) as they are exempt from the H-1B cap.

J-1 wavered physicians with federal or state interested government agency waivers personally exempt from the H-1B cap.  Physicians transferring from exempt employment, such as residency positions, to a for profit employer ARE subject to the H-1B cap.

Hardship Waivers

Q: How long does it take to process a hardship waiver?
A: It is currently taking the State Department an estimated 4-6 months to process hardship waivers, once they receive it from USCIS.

Q: What are the hardship waiver processing procedures?
A: Send a check in the amount of $215.00, payable to the Department of State, along with the current version of the Data Sheet (DS 3035) to the U.S. Department of State, Waiver Review Division, P.O. Box 952137, St. Louis, MO 63195-2137.  You may also complete the DS-3035 and obtain a case number online at: https://j1visawaiverrecommendation.state.gov/accessController.asp?page=7. 

However, you must still mail the fee, DS-3035 form, and other required documents to the St. Louis address.  Once your fee is processed, you will receive a letter in the nature of a receipt with your name and waiver review case number, along with a standard form letter explaining the process.  NOTE: This fee should be paid at the earliest possible time to avoid delays in filing a waiver application.  By paying the fee, you are not obligated to file a J-1 waiver nor will such affect your J-1 status.

The application is filed on Form I-612 and must be filed in duplicate, with the required filing fee of $545.00, with USCIS. The form can be downloaded from the USCIS home page at: www.uscis.gov.  The form is deceivingly simple.  It should not be completed without consulting with expert attorneys in the field of hardship waivers.

Prepare the most complete waiver application you can detailing “extreme”, “exceptional” and “unusual” hardships in the alternative.  You must prove the extreme hardship both if the exchange visitor returns to the home country for two years without his qualifying relatives and if the qualifying relatives return home with the exchange visitor.  A “qualifying relative” is an American citizen or lawful permanent resident spouse or child.

Be careful, the standard reason for rejection is that the exchange visitor has failed to prove that the hardship attendant upon a family separation is no greater than that which would normally be experienced by involuntary separation, such as loneliness and anxiety.

USCIS determines whether exceptional hardship to the qualifying relative(s) has been shown.  If the requisite hardship has been shown, the case will be forwarded to the Waiver Review Division (WRD) of the Department of State with a favorable recommendation.  The WRD balances the program and policy considerations of the exchange program in requiring the exchange visitor to return home for two years against the demonstrated exceptional hardship.  Most experts in the field agree that the Department of State reviews the hardship claim de novo and often substitutes its judgment for the USCIS determination.

If USCIS does not find “exceptional hardship”, the application is denied and not forwarded to the State Department.  There is a right to appeal the denial by USCIS to the Administrative Appeals Office of USCIS.  An appeal can add many months on to the processing time, even if successful.

Once the WRD receives the application, it will take about 4-6 months to process.

Note that if medical or mental hardship is claimed as the basis for waiver, the WRD will send the application to the State Department Medical Office for their opinion as to whether the medical or mental condition can be treated in the home country.  It is important for the application to thoroughly document the unavailability of treatment in the home country in such cases.  The Medical Office review adds to the processing time.

If the WRD concurs with the USCIS waiver recommendation it will return a simple one page form, known as an “I-613” to USCIS with one of two boxes checked (granted or denied).

Attorneys are faxed a copy of the I-613 by the WRD.

If the WRD does not recommend a grant of the waiver to USCIS, the application must be denied by the USCIS.  There are no formal motions to reopen or reconsider.

If the case is ultimately denied by the WRD, the recourse is to file a new waiver application with USCIS.  New, material evidence should be submitted.

Q: May a J-1 physician obtain a work permit while awaiting the outcome of a hardship waiver?

A: No, work permits are not available to applicants for hardship waivers, even if married to an American citizen.

However, the J-1 may apply for another non-immigrant status, such as an O-1.

Q: Does marriage to an American citizen eliminate the two-year home residence requirement?

A: No.  A J-1 physician who marries an American citizen is still subject to the two-year home residence requirement, and must either obtain a waiver or fulfill the requirement before he or she is eligible to obtain permanent resident status.  If an interested government agency waiver is obtained, the physician must still work in H-1B status for three years before applying for permanent residence.

Q: May I file an application for a hardship waiver based on the fact that I am pregnant with a child who will be an American citizen before the child is born?

A: If the only eligibility for a hardship waiver rests on the anticipated birth of an American child, you must wait until the child is born to become eligible to file the waiver.  However, you may prepare all documentation and file the waiver as soon as the child is born and you have a certificate of birth.

Q: Do USCIS and the WRD of the Department of State give the same weight to having a permanent resident relative as it does to have an American citizen relative?

A: While the statute governing hardship waivers, 212(e) of the INA accords the respective statuses equal weight, in practice LPR relatives are given less weight than the United States citizen relatives in hardship cases.  However, this is not a rigid rule and the facts underlying the case are the most important consideration.

Q: If I am married to an American citizen or lawful permanent resident, when should the immediate relative immigrant visa petition (I-130) be filed?

A: Generally, it should be filed and approved before the hardship waiver is filed.  However, there are other consideration which factor into this decision and you should consult with an expert attorney.  For example, if the J-1 is going to need to obtain a J-1 visa from a consular post after the relative immigrant visa petition is filed, a consular officer could legitimately deny the J-1 a new visa on the ground that the filing of the visa petition is evidence of an intent to immigrate.

Q: What are the advantages and disadvantages of pursuing a hardship waiver instead of an IGA waiver?

A: The advantages of pursuing a hardship waiver are that, if approved, the physician may immediately apply for permanent residence (if there is a qualifying family relationship or an employer willing to sponsor the physician) rather than spending three years in H-1B status before filing for permanent residence.  In addition, the physician is not limited to working in medically underserved areas, but may accept employment anywhere.

The main disadvantage is that the outcome and processing time of a hardship waiver are more difficult to predict than with an IGA waiver and the physician may be subject to the H-1B cap.

Q: How do I contact the WRD?

A: The WRD is under the jurisdiction of the State Department Bureau of Consular Affairs.  The website is http://travel.state.gov.  The mailing address is:

            Department of State
            Waiver Review Division
            Visa Office
            SA-1, Room L603
            2401 E Street, N.W.
            Washington, D.C. 20522-0106

Q: What are my chances of success?

A: The prosecution of a hardship waiver application is complex, and both the USCIS and the WRD apply strict standards in determining whether the departure would cause extreme hardship to a United States citizen or permanent resident spouse and/or child.

Note that exceptional hardship must be proven in the alternative; it must be demonstrated that the American citizen or permanent resident spouse or child(ren) will suffer exceptional hardship if the spouse and/or child(ren) remain in the United States while the J-1 physician returns home for two years and will also suffer exceptional hardship if the spouse and/or child(ren) go home with the exchange visitor for two years.  You must cover both situations in detail.  Proving exceptional hardship under one alternative is only half the case.

Factors which the USCIS and the WRD consider in their determinations include:

1.  Medical hardships including severe and life-threatening illnesses and conditions, or illnesses and conditions requiring regular care and/or medications not available in the physician’s home country, such as asthma, cancer, Downs Syndrome, or diabetes.  Note that the WRD will send waiver applications claiming medical hardship to the Department of State Medical Office for review as to whether the conditions in the home country constitute medical hardship.

2.  Psychological hardships including the exacerbation of an existing mental illness or disorder or the precipitation of the onset of a disorder, such as post traumatic stress disorder, or severe depression, if the foreign residence requirement is enforced.  Note that the WRD may request updated evidence of psychiatric treatment if the hardship claim is based on a mental disorder or illness and the qualifying relative is in therapy when the application is filed.

3.  Country conditions.  Country conditions are an extremely important factor in a hardship waiver case.  It would be unseemly for the United States government to effectively force American children to live in countries it has labeled state sponsors of terrorism or states infested with terrorists or undergoing anti-American upheavals.  For example, J-1 physicians from Iran, Syria, Sudan, Pakistan and war-ravaged countries would have a strong case in demonstrating extreme hardship to U.S. citizen children.

4.  Social, Cultural and Educational hardships which would result from the physician’s spouse and/or child relocating to a foreign country whose language they do not speak and whose culture is alien to them (e.g., an American Christian feminist, who does not speak Arabic, relocating to Saudi Arabia).

If the qualifying relative is a child with a diagnosed learning disability, the lack of special education in the home country is accorded great weight.

5.  Economic hardship to the physician’s spouse and/or child if the foreign residence requirement is enforced.  This factor is given little weight.

6.  Career interruption or destruction to the physician’s spouse (e.g., an American citizen solo law-practitioner relocating with J-1 spouse).

7.  Political and religious hardship, including fear of violence and oppression based on political views, race, ethnicity, gender, or sexual preference.

The strongest cases tend to involve educational, mental, and medical hardships.  Taking the above factors into account, you should consult with more than one competent immigration attorney experienced in hardship waiver cases to determine your chances of obtaining a hardship waiver, given the totality of the circumstances.

Q: Can you provide examples of the types of cases which will have a high probability of success and cases which have a low probability of success?

A: It is very important to note that every case is different.  The best example I can give you of how important it is to obtain multiple expert attorney opinions in this type of waiver, is a case our office handled a number of years ago.  A French physician was married to an American citizen and had an infant American citizen child and felt there was compelling exceptional hardship.  They had seen five immigration attorneys who told them their case did not pass the “laugh test”.

The appeared to be rational people and we interviewed them.  We learned that both the American husband and the J-1 physician wife were descendants of Holocaust survivors and their parents had been in concentration camps during World War II.  Common sense suggested that descendants of Holocaust survivors are particularly susceptible and vulnerable to developing a number of mental disorders when faced with a governmentally enforced separation.  They advised me they had not been able to articulate this and no prior lawyer had even asked.  The attorneys seemed to stop their analysis upon learning the home country was France.  The waiver was approved.

Tips on Fact Patterns which do not appear to carry much weight with WRD

• Biological clocks ticking.  The argument that it is necessary for the family to stay together in the United States so that a woman can have a child does not carry much weight.
• Single parent scenario.  Arguing that the spouse will be left alone in America for two years and will have to both work and care for a child does not make the cut.
• Having an American citizen child who is not sick.  That alone, is generally insufficient unless the country conditions in the home country would endanger a child’s health or life.  Applicants from countries engaged in civil wars and countries such as Iran and Iraq, have a possibility of success if both parents are required to leave for two years.  If one parent is an American citizen, the argument will be more difficult.

Q: In which countries may the two-year foreign residence requirement be satisfied?

A: The two-year foreign residence requirement may only be satisfied in the country of nationality or last permanent residence as indicated on Form IAP-66 or DS-2019.  If the J-1 is a citizen of one country and a permanent resident of a second country, the home residence requirement must be satisfied in the country which issued the assurances for the J-1 sponsorship.  These countries must be listed on the IAP-66 or DS-2019.

Q: The Department of State Data Sheet asks the waiver applicant to state the reasons for not wishing to fulfill the two-year foreign residence requirement.  How should this question be answered?

A: The question should be answered truthfully.  Normally, the response would be, in the case of a hardship waiver, that the applicant wishes to remain in the United States because of the extreme and unusual hardship his or her U.S. citizen or lawful permanent resident spouse and/or children would suffer if he/she were to leave, whether the spouse and/or children were to accompany the applicant or remain in the United States.

Q: If a J-1 visa holder subject to the two-year foreign residence requirement returns to the home country for two years to comply with the two-year home residence requirement, under what circumstances can he/she return to live in the United States?

A: Once the home residence requirement is satisfied, the form J-1 visa holder may return to the United States in any status and immigrate through any status (e.g. relatives, employment, investment, the DV lottery, etc.).

Q: Will time spent visiting the United States or other countries during the two-year home residence period count towards fulfilling the home country residence requirement?

A: No. The former J-1 exchange visitor must be physically present in the designated home country for a total of 730 days in order to fulfill the home residence requirement.

Q: Is it possible to obtain the approval of an O-1 petition while awaiting a decision on a hardship waiver?  If the O-1 petition is denied, is it possible to extend the IAP-66 for a fellowship?

A: It is possible to obtain the approval of an O-1 petition while awaiting the approval of a hardship waiver.  While you may not change status in the United States from J-1 to O-1, you may obtain an O-1 visa at an American consular post without a waiver and be admitted to the United States in O-1 status.  The two-year foreign residence requirement continues to exist.

Eligibility for J-1 status is not affected by the filing or approval of an O-1 petition.  If otherwise eligible, the sponsorship may continue without interruption.

Q: May a J-1 visa holder obtain further extensions of J-1 status in the United States if a relative, such as a spouse or parent, files an immigrant visa petition for a J-1 alien?

A: Yes.  The filing and approval of an immigrant visa petition is not a bar to extending J-1 status.  However, the J-1 alien cannot file an application for permanent residence until the two-year foreign residence requirement is satisfied.

Note that it may be difficult to obtain future J-1 visas from American consular posts once an immigrant visa petition is filed as consular officers may deem the filing of an immigrant petition as evidence of an intention to immigrate and refuse future J1/J2 visas.

Q: What guidelines do the USCIS and the WRD use in adjudicating hardship waivers?

A: The USCIS applies a well-established body of case law in making the initial determination as to whether a claim of exceptional hardship to a qualifying relative has been demonstrated.  If USCIS finds “exceptional hardship” they forward the case to the Department of State Waiver Review Division (“WRD”).  The WRD has no published guidelines setting forth criteria for adjudication.  This lack of known criteria leads to uncertainty regarding whether an application will be approved as there is no precedent on which applicants or their attorneys may safely rely.  Anecdotal evidence suggests that both USCIS and the Department of State will accord weight to cases developed using the “Hake Hardship Scale”.  Under the “Hake Hardship Scale,” a prospective client’s family must rate at least “11 points” of hardship to qualify for a waiver.  The categories are as follows:

1.  Three categories for persons involved in the cases –
a.  U.S. citizen spouse or child? Five points for each U.S. citizen spouse or U.S. citizen child.  One point for each additional U.S. citizen child.
b.  LPR spouse or child?  Four points for an LPR spouse.  Three points for an LPR child.  One point for each additional LPR child.
c.  Third persons facing very serious hardships, who depend on the family? Zero to three points.

2.  One category for the public interest –
     a.  Significant public interest factors?  Zero to two points.

3.  Six categories for a specific hardship ground –
a. Medical hardships to spouse or child?  Zero to six points (per person as appropriate).
b.  Psychological hardships to spouse or child? Zero to five points (per person as appropriate).
c.  Career or educational disruptions to spouse or child? Zero to two points.
d.  Very serious financial hardships? Zero to one point.
e.  Sociocultural hardships upon relocation to the home country? Zero to one point.
f.  Significant risk of physical harm due to political or sectarian violence? Zero to three points.

Q: What factors should be considered in selecting an attorney for representation in the hardship waiver process?

A: Here are some suggestions:

1.  It is particularly important to choose an attorney in whom you have confidence and with whom you feel comfortable discussing intimate details of the lives of you and your family.  As you will be working closely with the attorney for a long period of time, it is more important in this context to feel extremely confident and comfortable with your lawyer.

2.  The opinions of others who have used the attorney is a most valuable barometer in making your choice.

3.  Experience with hardship waivers should be a primary factor in your choice, particularly in this area of law where there are few written rules.

Q: How soon after obtaining a hardship waiver may I apply for my green card?

A: You may apply for a green card immediately upon receiving the hardship waiver if you are otherwise eligible.  Of course, you may begin the process of obtaining the approval of a family-based or employment-based immigrant visa petition at any time, even prior to filing the hardship waiver application.  In order to avoid employment gaps between the time the J-1 program terminates and USCIS issues a work permit in connection with the filing of a permanent residence application, it will be necessary to change to H-1B status as a bridging status.  You may not apply for a green card by filing an I-485 or consular processing until the waiver is approved by the Department of State.

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