USCIS Implements New Public Charge Rule
BY LAUREN BERKOWITZ
On January 27, 2020, the Supreme Court granted the Trump administration permission to enforce its highly contested Inadmissibility on Public Charge Grounds final rule (“Public Charge final rule”). The Public Charge final rule went into effect on February 24, 2020 and applies nationwide, including in Illinois.
What is the Public Charge Rule?
Public charge is a ground of inadmissibility that prohibits noncitizens from receiving a green card if they are unable to support themselves financially without the receipt of certain forms of public assistance. This concept is not new - public charge has existed in practice since the 1600s and has been prescribed by law since the late 1800s - but the definition enacted under the new agency regulation represents a significant departure from prior law.
The Public Charge final rule changes the standard by which USCIS will determine whether an individual is “likely at any time to become a public charge” and therefore ineligible for a green card or visa. Previously a “public charge” was defined as a person “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.”
Under the new rule, instead of evaluating whether someone might become “primarily dependent” on cash assistance or Medicaid coverage for long-term institutionalization, the inquiry is re-directed to the applicant’s future earning potential based on their financial status, age, health, family status, education, skills, and other factors. It defines these terms in ways that may make it difficult for low-skilled, low-income, elderly, or disabled applicants to overcome the public charge inquiry. The new rule also makes it more difficult to use a family member or other sponsor’s income (i.e., an “affidavit of support”) as evidence that you will not become a public charge.
Who Is Impacted?
All applicants for admission to the United States are subject to the public charge ground of inadmissibility under Section 214(a)(4) of the Immigration and Nationality Act (INA) unless specifically exempted, as discussed below.
Those most impacted by the new Public Charge final rule are foreign nationals applying for green cards from within the United States through a process known as “adjustment of status.” As of the effective date of the new rule, adjustment applicants must submit additional personal information and documentation with Form I-485, as detailed below.
Nonimmigrants, or temporary visa holders, seeking an extension or change of status will not be subject to the full impact of the new rule but, as of the effective date, must satisfy a new public charge condition to be deemed eligible for their requested immigration benefit.
Current green card holders will only be impacted if they spend more than 180 consecutive days outside of the U.S. and then seek to reenter the U.S.
While the new Public Charge rule applies specifically to applications and petitions reviewed by USCIS in the United States, the Department of State (DOS) has adopted similar standards for visa applicants seeking admission from outside the U.S.
Who is Exempt?
Congress has exempted certain classes of immigrants from the public charge ground of inadmissibility. Exempt classes include refugees, asylees, victims of crimes and trafficking, and certain VAWA self-petitioners. The new Public Charge provisions also do not apply when a permanent resident applies for naturalization, renews their green card, or applies to remove conditions on their permanent residency.
What Is the Impact on Adjustment of Status Applications?
Effective February 24, 2020, most applicants filing Form I-485, Application to Adjust Status (aka the “green card” application) must also file a new form, Form I-944, Declaration of Self-Sufficiency. If a family unit applies together, each family member must submit their own Form I-944.
USCIS’s new Form I-944 is 18 pages long and collects exhaustive information about the green card applicant’s financial and personal circumstances, as well as biographical information and financial status of all of their household members. The I-944 includes questions and requires the submission of documentation related to household income and assets, liabilities and debts, credit score and history, health insurance, education level, languages spoken, employment history, and receipt of certain public benefits, among other factors.
Under the Public Charge final rule, USCIS will analyze each applicant’s self-sufficiency based on the totality of the circumstances. USCIS may weigh certain factors more heavily than others when making a public charge inadmissibility determination. For instance, USCIS will heavily weigh an income of at least 250 percent of the federal poverty guidelines for household size as a positive factor (e.g., $31,900 annual income for a household of 1 individual or $65,000 for a family of four).
Due to these new and more exhaustive requirements, adjustment filings will take significantly longer to prepare and will likely further slow the government’s already backlogged case processing times.
If you are considering filing an adjustment application, you should start the process early, as the paperwork burden will be significant, and you may need to consult with an accountant or tax professional to complete the Form I-944.
Form I-944 is a USCIS form and is only required for adjustment applicants in the U.S. The U.S. Dept of State released its own public charge questionnaire (form DS-5540), which most immigrant visa applicants will need to complete in order to apply for a green card outside the United States.
What is the Impact on Nonimmigrant Petitions?
As of February 24, 2020, nonimmigrants seeking to change or extend their status must disclose whether they have received or are certified to receive certain public benefits on Forms I-129 and I-539. In order to negatively impact the application, the foreign national must have received one or more of the listed public benefits for an aggregate of more than 12 months within a 3-year period since obtaining their current nonimmigrant status.
Importantly, only benefits received on or after February 24, 2020, need to be reported, and USCIS will not consider public benefits received before February 24, 2020 in the nonimmigrant public charge inquiry.
Which ‘Public Benefits’ are Considered?
The final rule expands the list of public benefits, so that receipt of any of the following types of assistance on or after February 24, 2020, can be considered in the public charge inquiry:
Any Federal, State, local, or tribal cash assistance for income maintenance;
Supplemental Security Income (SSI);
Temporary Assistance for Needy Families (TANF);
Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which may exist under other names);
Supplemental Nutrition Assistance Program (SNAP, formerly called “Food Stamps”);
Section 8 Housing Assistance under the Housing Choice Voucher Program;
Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
Public Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq.; and
Federally funded Medicaid (not including state-only funded Medicaid; emergency services; school-based benefits to children; use by immigrant children under 21 years of age; or use by immigrants during pregnancy and up to 60 days after).
Receipt of one or more of these benefits does not necessarily preclude you from receiving a green card or visa, since USCIS will apply a balancing test that considers other factors as well. There are also multiple exceptions which may apply to your situation, so that receipt of public benefits will not negatively impact your visa eligibility.
If you have questions about the Public Charge final rule, or you have other immigration-related inquiries, contact Berk Immigration by email at info@berklawllc.com or call 267-627-0339. Click here to schedule a consultation.