Chapter 5 - Statutory Minimum Factors

Under section 212(a)(4)(B) of the Immigration and Nationality Act (INA), officers are required to consider specific minimum factors in determining whether an alien applying to adjust status to that of lawful permanent resident is likely at any time to become a public charge. These statutory minimum factors include the alien’s:

• Age;
• Health;
• Family status;
• Assets, resources, and financial status; and
• Education and skills.^[1]

This chapter discusses the statutory minimum factors. Subsequent chapters discuss the Affidavit of Support Under Section 213A of the INA (Form I-864) and consideration of any current and/or past receipt of means-tested public benefits.^[2]

A. Age

An officer must consider an alien’s age in a public charge inadmissibility determination.^[3] The alien provides his or her date of birth on the Form I-485.

USCIS considers the alien’s age in relation to its potential impact on the other factors, for example, the health and assets, resources, and financial status factors.^[4] For example, in the case of an alien who is a child and who, due to his or her age, is unable to earn a living through employment, the assets, resources, and financial status of his or her parents or guardians, who are part of the alien’s household, would be of particular importance in the public charge inadmissibility determination. However, as noted previously, an alien’s age alone is not outcome determinative.

Also, individuals depart the workforce at different ages. An officer should scrutinize an alien’s plans for current and future employment in the United States. If an alien has already retired, is nearing retirement, or otherwise indicates no employment plans or only short-term employment plans based on the alien’s age, an assessment of retirement plans, accounts, benefits, and household assets and resources takes on a more critical role in the public charge inadmissibility determination.

B. Health

An officer must consider an alien’s health in a public charge inadmissibility determination.^[5]

1. Report of Immigration Medical Examination and Vaccination Record

In considering an alien’s health in a public charge inadmissibility determination, an officer must not make health diagnoses and should generally defer to the immigration medical examination report completed and signed by a civil surgeon or a panel physician. A civil surgeon records the results of the immigration medical examination on the Report of Immigration Medical Examination and Vaccination Record (Form I-693). A panel physician records the results of the immigration medical examination on the following Department of State forms: Medical Examination for Immigrant or Refugee Applicant (1991 TB Technical Instructions) (Form DS-2053), the Medical Examination for Immigrant or Refugee Applicant (2007 TB Technical Instructions) (Form DS-2054), or the Electronic Medical Examination for Visa Applicant (DS-7794), and related worksheets.^[6]

Civil surgeons and panel physicians are instructed to comply with the Centers for Disease Control and Prevention’s (CDC) Technical Instructions.^[7] As noted in the Technical Instructions, the purpose of the immigration medical examination is to determine whether the alien has:

• A physical or mental disorder (including a communicable disease of public health significance or drug abuse/addiction) that renders him or her ineligible for admission or adjustment of status (Class A condition); or
• A physical or mental disorder that represents a departure from normal health or well-being that is significant enough to possibly interfere with the person's ability to care for him- or herself, to attend school or work, or that may require extensive medical treatment or institutionalization in the future (Class B condition).^[8]

The civil surgeon or panel physician, therefore, should account for any diagnoses of Class A^[9] or Class B medical conditions.^[10] As noted above, Class A medical conditions are medical conditions listed in INA 212(a)(1)(A) that render an alien inadmissible and ineligible for a visa or adjustment of status under the health-related grounds.

Class B medical conditions, on the other hand, do not render the alien inadmissible. However, such conditions may possibly impact the alien’s ability to work, to provide for himself or herself, or require or will likely require extensive medical care or institutional care. As a result, such conditions may be relevant to assessing the alien’s likelihood at any time of becoming a public charge. In the case of Class B medical conditions, civil surgeons and panel physicians are required to determine and report:

• The nature and extent of the abnormality;
• The degree to which the alien is incapable of normal physical activity;
• The extent to which the condition is remediable; and
• The likelihood that the alien will require extensive medical care or institutionalization because of the condition.^[11]

An officer should consider the alien’s health, as reflected on the civil surgeon or panel physician’s report, and how the alien’s health impacts other factors in the totality of circumstances. For example, even if the alien’s medical condition prevents the alien from working or requires extensive medical care or institutional care, an alien may still be able to demonstrate sufficient household income, assets, and resources to cover the alien’s projected basic needs and medical costs. The alien could also present evidence that he or she is covered under a health insurance policy (that is not a means-tested public benefit) that is sufficient to address the alien’s medical costs when considered in combination with the alien’s household income, assets, and resources.

When considering the alien’s health, an officer may also consider medical reports and information the alien has submitted with previous applications or requests that are part of the alien’s administrative record.^[12]

USCIS may request additional information regarding an applicant’s health if the information provided in the report of immigration medical examination is incomplete.

2. Relationship Between Health and Disability

An officer’s consideration of an alien’s health under INA 212(a)(4)(B)(i) may also include consideration of any disabilities, as defined by Section 504 of the Rehabilitation Act. An alien’s disability or disabilities may be identified in the alien’s report of immigration medical examination. An alien’s disability alone is not a sufficient basis to determine that the alien is likely at any time to become a public charge, and an officer may not find an alien inadmissible on the public charge ground solely based on an applicant’s disability.

Many disabilities do not prevent an alien from working and do not require extensive medical care or institutional care. Research, including multiple studies published by the U.S. Department of Health and Human Services, indicates that the majority of people with disabilities do not use institutional care.^[13]

Therefore, an officer should not presume that an alien having a disability alone means that the alien is in poor health or is likely at any time to become a public charge. Likewise, USCIS does not presume that the alien’s disability in and of itself negatively impacts any of the other statutory minimum factors, but rather USCIS considers the disability in the totality of the circumstances.

C. Family Status

USCIS must consider an alien’s family status in a public charge inadmissibility determination.^[14] An alien’s family status is understood to include consideration of the alien’s household size. Officers may consider the following individuals as part of an alien’s household for purposes of a public charge inadmissibility determination:

• The alien;
• The alien’s spouse, if physically residing with the alien;
• The alien’s parents, if physically residing with the alien;
• The alien’s unmarried siblings under 21 years of age, if physically residing with the alien;
• The alien’s children,^[15] if physically residing with the alien;
• Any other individuals who are listed as dependents on the alien’s federal income tax return;^[16] and
• Any other individuals who list the alien as a dependent on their federal income tax return.

As seen in this list, an alien’s household may include certain individuals living with the alien (who may or may not contribute financially to the household) as well as certain relatives and close relations who may contribute financially to the alien’s household while not residing with the alien. Financial contributions from these non-cohabitating household members are included in the consideration of the alien’s assets, resources, and financial status factor, as described below.

D. Assets, Resources, and Financial Status

USCIS must consider an alien’s assets, resources, and financial status in a public charge inadmissibility determination.^[17] In considering an alien’s assets, resources, and financial status, USCIS examines the alien’s household’s income, assets, and liabilities. 

Income

Aliens indicate their household’s annual income, which may include income provided to the household from sources who are not members of the household, such as alimony or child support. A household’s annual income may also include any cash payments that have been earned, such as Title II Social Security benefits, government pension benefits, unemployment insurance payments, and veterans’ benefits. Considering that the purpose of a public charge inadmissibility determination is to determine the alien’s likelihood of at any time becoming a public charge, the source of an alien’s income is a highly relevant consideration. Specifically, if an alien’s income comes exclusively or partially from means-tested public benefits, such income cannot be considered positively in the totality of the circumstances. Therefore, officers should exclude from positive consideration any income from means-tested public benefits. Similarly, officers will exclude from consideration any income from illegal activities or sources such as proceeds from illegal gambling or drug sales.

USCIS does not limit the consideration of income only to income that appears on federal income tax forms and considers all evidence of income from lawful sources. Examples of income that may not appear on income tax forms include child support and alimony. Some households may also have regular income, such as Social Security income, that does not reach the minimum required threshold for filing federal income taxes.^[18] USCIS also considers any evidence an alien submits pertaining to expected future income.

USCIS does not attribute the receipt of means-tested public benefits by an alien’s household members to the alien. However, because USCIS considers an alien’s household income as part of this factor, there are certain circumstances in which USCIS may consider the receipt of means-tested public benefits by members of the alien’s household when considering the alien’s assets, resources, and financial status. The receipt of means-tested public benefits by members of the alien’s household is only relevant to the public charge inadmissibility determination if:

• The means-tested public benefits received by the alien’s household member are the alien’s source of financial support; or
• The alien is legally obligated to support the household member who is receiving the means-tested public benefits.

In both of these cases, the receipt by the household member is relevant to the public charge inadmissibility determination for the alien solely because it is potentially indicative of the alien’s assets, resources, or financial status. Such information may be consistent with or undermine information or evidence provided by the alien in connection with his or her application for adjustment of status. Note, however, that USCIS does not collect information about the receipt of means-tested public benefits by household members on Form I-485.

In some instances, the alien’s household income may include income that has resulted from unauthorized employment. Whether an alien or a member of the alien’s household engaged in unlawful employment, and any immigration consequences flowing from such unauthorized employment, is a separate determination from the public charge inadmissibility determination.^[19] Therefore, income derived from unlawful employment is not excluded from the household’s income calculation unless the income is derived from illegal activities or sources, such as illegal gambling or drug sales.

Assets and Liabilities

When considering the applicant’s financial status, USCIS also considers the assets and resources of the alien’s household, for example, investments or home equity, excluding any assets from illegal activities or sources, such as proceeds from illegal gambling or drug sales. USCIS also considers the alien’s household’s liabilities, both secured and unsecured, such as loans, alimony, and child support payments. By taking into account liabilities of an alien’s household, USCIS is able to examine the alien’s overall financial status in the totality of the circumstances.

USCIS considers financial obligations and debts alongside assets and resources to avoid artificially inflating the calculation of an alien’s financial status, as these obligations and debts would decrease the resources that are actually accessible to the alien. However, if an alien has financial obligations and debts, this does not necessarily indicate that the alien is inadmissible under the public charge ground, and USCIS considers this factor in the totality of the circumstances.

E. Education and Skills

USCIS must consider an alien’s education and skills in a public charge inadmissibility determination.^[20] In considering an alien’s education and skills, USCIS may consider any degrees, certifications, licenses, educational certificates, and skills the alien obtained through work experience or educational programs.

Skills obtained through work experience (including volunteer and unpaid opportunities) include but are not limited to the alien’s workforce skills, training, licenses for specific occupations or professions, language skills (including English proficiency), and certificates documenting mastery or apprenticeships in skilled trades or professions. Educational certificates are issued by an educational institution (or a training provider) and certify that an occupation specific program of study was completed.

While some aliens may establish their education and skills through evidence of completed degrees, the statutory education and skills factor does not specify that only formal education is acceptable. USCIS may consider other evidence of attained knowledge and skills, including those skills earned through certifications and licensure, as well as skills obtained through on-the-job training or overall work experience. This consideration allows USCIS to acknowledge those aliens who hold occupations that do not require official licenses or certifications but whose occupations impart skills that otherwise affect the alien’s overall employability.

Footnotes

[^ 1] See INA 212(a)(4)(B)(i).

[^ 2] See Chapter 6, Affidavit of Support Under Section 213A of the INA [8 USCIS-PM G.6]. See Chapter 7, Consideration of Any Current or Past Application for, Approval or Certification to Receive, and Receipt of Means-Tested Public Benefits [8 USCIS-PM G.7].

[^ 3] See INA 212(a)(4)(B)(i).

[^ 4] For more information about the totality of the circumstances determination, see Chapter 4, Prospective Determination Based on the Totality of the Circumstances [8 USCIS-PM G.4]. For more information about the totality of circumstances specifically relating to children, see Chapter 10, Adjudicating Public Charge Inadmissibility for Adjustment of Status Applications, Section A, Evidence in the Record [8 USCIS-PM G.10(A)]. See Chapter 8, Other Relevant Factors [8 USCIS-PM G.8].

[^ 5] See INA 212(a)(4)(B)(i).

[^ 6] As of October 1, 2013, panel physicians only use DS-2054 or DS-7794, the DS-2053 is no longer in use. Applicants for adjustment of status generally submit Form I-693; however, immigrants applying for adjustment of status as a refugee, a derivative of an asylee, or a K or V nonimmigrant visa holder, as well as some Afghan nationals who entered the United States as part of Operation Allies Welcome and have already had a medical examination overseas, may submit a medical examination performed by a panel physician.

[^ 7] See Technical Instructions for Civil Surgeons (May 15, 2024) and Technical Instructions for Panel Physicians (May 15, 2024).

[^ 8] See “Scope of the Examination” in Technical Instructions for Civil Surgeons (May 15, 2024) and Technical Instructions for Panel Physicians (May 15, 2024).

[^ 9] See 42 CFR 34.2(d).

[^ 10] See 42 CFR 34.4(b)(2) and 42 CFR 34.4(c)(2). For more information about Class A and Class B conditions, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].

[^ 11] See 42 CFR 34.4(c) and “Other Physical or Mental Abnormality, Disease or Disability - Required Evaluation Components” in Technical Instructions for Civil Surgeons (May 15, 2024).

[^ 12] While USCIS is generally not a covered entity bound by the Health Insurance Portability and Accountability Act (HIPAA), USCIS complies with the Privacy Act of 1974 in safeguarding information in the applicable system of records. Such information is generally confidential and is used primarily for immigration purposes. See 45 CFR 160.103. See also 5 U.S.C. 552.

[^ 13] See Population Estimates of Disability and Long-Term Care, HHS Office of the Assistant Secretary for Planning and Evaluation (Jan 31, 1995), available at https://aspe.hhs.gov/reports/population-estimates-disability-long-term-care-0. See also 30 Years of Community Living, HHS Administration for Community Living (2021), available at https://acl.gov/sites/default/files/Aging%20and%20Disability%20in%20America/30%20Years%207-13-21.pdf (PDF). See also von Reichert, Christiane, Disability and the household context: Findings for the United States from the public Use Microdata Sample of the American Community Survey, Frontiers in Research Sciences (Aug. 12, 2022), available at https://pmc.ncbi.nlm.nih.gov/articles/PMC9397927/.

[^ 14] See INA 212(a)(4)(B)(i).

[^ 15] As defined in INA 101(b)(1).

[^ 16] Including a spouse or child as defined in INA 101(b)(1) not physically residing with the alien.

[^ 17] See INA 212(a)(4)(B)(i).

[^ 18] See the Internal Revenue Service’s (IRS) Who Should File a Tax Return webpage for more information on the minimum taxable income threshold.

[^ 19] See INA 245(c)(2) and INA 245(c)(8). For more information about the unauthorized employment determination, see Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 6, Unauthorized Employment (INA 245(c)(2) and INA 245(c)(8)) [7 USCIS-PM B.6].

[^ 20] See INA 212(a)(4)(B)(i).