Public Charge Rule: Frequently Asked Questions

In this blog post we answer your frequently asked questions regarding the public charge rule.

Overview:

On October 10, 2018, the Department of Homeland Security first published the final rule “Inadmissibility on Public Charge Grounds” which dramatically changes the way in which an individual is determined to be a “public charge.” Although five separate courts issued injunctions to stop the government from implementing the final rule, on January 27, 2020, the Supreme Court of the United States ruled in favor of the Trump administration, allowing the government to implement the public charge rule, except in the state of Illinois where a state-wide injunction remains in place.

The new regulations will make it more difficult for certain adjustment of status and immigrant visa applicants to prove that they are not likely to become a public charge to the United States government.

The following frequently asked questions have been prepared to better inform our readers and address concerns regarding the effect of the public charge rule.

Q: When will the public charge rule take effect?

A: Shortly after the Supreme Court’s ruling, USCIS formally announced on its website that the public charge rule will affect all applications for adjustment of status (green card applications) postmarked on or after February 24, 2020 (except in the state of Illinois, where the rule remains enjoined by a federal court).

Q: Who does the public charge rule apply to?

A: In general, all applicants for admission to the United States are subject to the public charge ground of inadmissibility under INA § 212(a)(4) unless specifically exempted.

The following non-citizens are affected by the public charge rule:

• Applicants for adjustment of status in the United States
• Applicants for an immigrant visa abroad
• Applicants for a nonimmigrant visa abroad
• Applicants for admission at the U.S. border who have been granted an immigrant or nonimmigrant visa, and
• Nonimmigrants applying for an extension or change of status within the United States (new policy under the final rule).

Applicants seeking lawful permanent resident status (applicants for adjustment of status) based on a family relationship are most affected by the public charge rule.

Q: Who is exempt from the public charge rule?

A: Certain special groups of non-citizens are exempt from the public charge rule and remain completely unaffected as follows:

• Refugee applicants and refugees who are applying for adjustment of status
• Asylum applicants and asylees who are applying for adjustment of status
• Applicants for withholding of removal or relief under the Convention Against Torture
• Applicants for initial or re-registration of Temporary Protected Status (TPS)
• Applicants for initial or renewal of Deferred Action for Childhood Arrivals (DACA) status
• Cubans who are applying for adjustment of status under the Cuban Adjustment Act
• Amerasians who are applying for adjustment of status
• Afghan and Iraqi interpreters and translators who are applying for special immigrant visas (SIV)
• Applicants for Special Immigrant Juveniles Status (SIJS)
• Victims of certain crimes who are applying for a U nonimmigrant visa or U visa holders applying for adjustment of status
• Victims of trafficking who are applying for a T nonimmigrant visa; T visa recipients who are applying for adjustment of status no longer have to seek a waiver of public charge inadmissibility
• Victims of domestic violence who are applying for relief under the Violence Against Women Act (VAWA), including approved self-petitioners who are applying for adjustment of status
• Applicants for “registry” based on their having resided in the United States since before January 1, 1972
• Applicants for benefits under the Nicaraguan Adjustment and Central American Relief Act (NACARA)
• Applicants for benefits under the Haitian Relief and Immigrant Fairness Act (HRIFA)
• Lautenberg parolees who are applying for adjustment of status.

*NOTE: Applicants in the state of Illinois are also exempted from the public charge rule, where a state-wide injunction remains in place. 

Q: What procedural changes do I need to be aware of?

A: On February 5, 2020, USCIS published revised forms and form instructions consistent with the final rule. Beginning February 24, 2020, applicants and petitioners must use the new editions of the following forms (except in the state of Illinois, where the rule remains enjoined by a federal court):

• Form I-129, Petition for a Nonimmigrant Worker
• Form I-129CW, Petition for a CNMI-Only Nonimmigrant Worker
• Form I-485, Application to Register Permanent Residence or Adjust Status
• Form I-485 Supplement A, Supplement A to Form I-485, Adjustment of Status Under Section 245(i)
• Form I-485J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)
• Form I-539, Application to Extend/Change Nonimmigrant Status
• Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status (PDF)
• Form I-601, Application for Waiver of Grounds of Inadmissibility
• Form I-864, Affidavit of Support Under Section 213A of the INA
• Form I-864A, Contract Between Sponsor and Household Member
• Form I-864EZ, Affidavit of Support Under Section 213A of the INA
• Form I-912, Request for Fee Waiver

In addition, except for applicants in the state of Illinois, all applicants for adjustment of status subject to the public charge ground of inadmissibility and the Final Rule must submit Form I-944 Declaration of Self Sufficiency.

Certain applicants whom USCIS invites to submit a public charge bond will need to complete the new Form I-945 Public Charge Bond.

*NOTE: Failure to use the new editions of these forms for applications postmarked on or after February 24, 2020 will result in a rejection and return of the filing.

Q: What makes someone a public charge?

A: The public charge rule states that the government will use a “totality of the circumstances” test to determine whether an applicant is “likely at any time to become a public charge,” meaning that as a whole the government must look to all of the circumstances of the application, rather than focus on any one factor.

A person is likely to be a “public charge” in the eyes of the government if they are “more likely than not” to receive any of the following benefits for more than 12 months in the aggregate within any 36-month period:

• Supplemental Social Security Income (SSI)
• Temporary Assistance to Needy Families (TANF)
• Medicaid
• Non-Emergency Medicaid
• Supplemental Nutrition and Assistance Program (SNAP)
• Section 8 Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance and
• Certain other forms of subsidized housing.

Q: What factors will be considered when determining whether a person is likely to become a public charge?

A: In determining whether an applicant is likely to become a public charge, the government will weigh several important factors including the applicants age, health, family status, assets, resources, financial status, education, and skills.

The government will take into consideration all positives and negatives to evaluate whether an applicant is “likely at any time to become a public charge.” In addition, the government will consider a sponsor’s affidavit of support to determine inadmissibility on public charge grounds.

If the negative factors outweigh the positive factors, then the alien will be found inadmissible as likely to become a public charge. If the positive factors outweigh the negative factors, then the alien would not be found likely to become a public charge.

The existence or absence of a particular factor can never be the sole criterion for determining whether a person is likely to become a public charge.

Remember that the test is a “totality of the circumstances” test meaning that as a whole the government must look to all of the circumstances, rather than focus on any one factor.

Q: How can my age factor into this determination?

A: A person’s age may impact his or her ability to legally or physically work and will therefore be considered by the government to determine whether an applicant will be self-sufficient, and the likelihood of that individual becoming a public charge.

The government will consider an alien’s age primarily in relation to employment or employability, and secondarily to other factors as relevant to determining whether someone is likely to become a public charge.

Specifically, the government will assess whether the alien is between 18 and the minimum “early retirement age” for social security purposes, and whether the alien’s age otherwise makes the alien more or less likely to become a public charge, such as by impacting the alien’s ability to work.

The government would consider a person’s age between 18 and 61 as a positive factor in the totality of the circumstances and consider a person’s age under 18 or over 61 to be a negative factor in the totality of the circumstances when determining the likelihood of becoming a public charge.

However, the government acknowledges that people under the age of 18 and over the age of 61 may be working or have adequate means of support and would recognize such means as positive factors.

Q:How can my health factor into this determination?

A: When considering an alien’s health, the government will consider whether the alien has any physical or mental condition that, although not considered a condition or disorder that would render the alien inadmissible under the health-related ground of inadmissibility, is significant enough to interfere with the person’s ability to care for him- or herself or to attend school or work, or that is likely to require extensive medical treatment or institutionalization in the future.

The mere presence of a medical condition would not render an alien inadmissible. Instead, the government would consider the existence of a medical condition in light of the effect that such medical condition is likely to have on the alien’s ability to attend school or work, and weigh such evidence in the totality of the circumstances.

As part of the assets, resources and financial status factor, the government would consider whether the alien has private health insurance, or the financial resources to pay for associated medical costs.

Q: How can my household size (family status) factor into this determination?

A: When considering an alien’s family status, the government will consider whether the alien has a household to support, or whether the alien is being supported by another household and whether the alien’s household size makes the alien more or less likely to become a public charge.

Family status would be viewed in connection with, among other things, the alien’s assets and resources, because the amount of assets and resources necessary to support a larger number of people in a household is generally greater.

This would require the government to consider whether the alien can support him or herself and the household at the level of at least 125 percent of the most recent FPG based on the alien’s household size.

Q: How can my assets, resources, and financial status factor into this determination?

A: The government will consider in the totality of the circumstances whether the alien can, taking into account both the alien’s assets and liabilities, establish the ability to support himself or herself and the household. The Affidavit of Support submitted on the alien’s behalf is a separate requirement.

According to DHS, the more assets and resources an alien has, the more self-sufficient the alien is likely to be, and the less likely the alien is to receive public benefits.

On the other hand, an alien’s lack of assets and resources, including income, makes an alien more likely to receive public benefits, and more likely to be considered a public charge.

In general, when considering an alien’s assets and resources, DHS will consider whether the alien has gross household income of at least 125 percent of the FPG based on the household size.

If the alien’s household income is less than 125 percent of the FPG, the alien’s other household assets and resources should be at least 5 times the difference between the household income and 125 of the FPG based on the household size.

USCIS may require certain types of evidence when reviewing this factor such as the alien’s annual gross household income, any additional income received by the alien, the household’s cash assets and resources as reflected in checking and savings account statements in the last 12 months, evidence that the alien has applied for or received any public benefit on or after the effective date of the rule, evidence the alien has applied for or received a fee waiver for immigration benefits after the effective date of the rule, credit histories and credit scores, and whether the alien has private health insurance or financial resources to pay for medical costs associated with a medical condition.

Q: How can current or past applications for, or receipt of, public benefits impact me?

A: Current or past applications for or receipt of public benefits, suggests that the alien’s overall financial status is so weak that he or she is or was unable to fully support him or herself without government assistance, i.e., that the alien will receive such benefits in the future.

The government will, therefore, consider any current and past receipt of public benefits as set forth in 8 CFR 212.21(b) as a negative factor in the totality of the circumstances, because it is indicative of a weak financial status and increases the likelihood that the alien will become a public charge in the future.

The weight given to this factor would depend on how recently the alien has received public benefits, and whether the person has received public benefits for an extended period of time (i.e., receives public benefits for multiple years) or at multiple different time periods (i.e., 3 times in the last two years).

The government will also consider whether the alien has been certified or approved to receive public benefits, as defined in 8 CFR 212.21(b), on or after the effective date of the final rule.

Q: How can my education/skills factor into this determination?

A: An applicant’s education and skills are mandatory factors that will be considered when determining whether an alien is likely to become a public charge in the future.

In general, an alien with educational credentials and skills is more employable and less likely to become a public charge.

When considering this factor, the government will consider whether the alien has adequate education and skills to either obtain or maintain employment sufficient to avoid becoming a public charge, if authorized for employment.

Totality of the Circumstances Reminder 

As stated above, the government will take into consideration all positives and negatives of the above factors to evaluate whether an applicant is “likely at any time to become a public charge.” In addition, the government will consider a sponsor’s affidavit of support to determine inadmissibility on public charge grounds.

If the negative factors outweigh the positive factors, then the alien will be found inadmissible as likely to become a public charge, but if the positive factors outweigh the negative factors, then the alien would not be found likely to become a public charge.

Remember: The existence or absence of a particular factor can never be the sole criterion for determining whether a person is likely to become a public charge. The government must look to all of the circumstances of an application to determine whether a person is likely to become a public charge.

For further questions about the public charge rule please contact us for a consultation.