DHS issued a new public charge regulation on August 15, 2019. The regulation will primarily affect persons who apply immigration benefits starting on October 15, 2019. However, because the rule is currently being challenged in Federal Court, it is not certain whether it will become effective on that date.
It is anticipated that the State Department and EOIR will adopt the same standards when deciding whether to grant an immigrant or nonimmigrant visa abroad, or in deciding whether to grant benefits to a person in removal proceedings in Immigration Court.
Applications and petitions already pending on or before the effective date of the rule will be adjudicated based on the current standard.
The term “likely at any time to become a public charge” is a ground of inadmissibility found in INA § 212(a)(4). The new rule redefines what this means in the following ways:
Application of Public Charge Rule: Primarily Dependent vs Likely Receipt
The public charge ground of inadmissibility used to be applied only to persons who might become “primarily dependent” on designated state and federal programs for more than half of their income or support. The new rule broadens the definition to apply to those who are determined to be more likely than not to receive a broader list of benefits for more than 12 months in the aggregate within any 36-month period.
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Form I-944 – Declaration of Self-Sufficiency
The USCIS has issued a new 18-page I-944 form entitled Declaration of Self-Sufficiency which must be filed with applications for Adjustment of Status starting October 15, 2019 for persons who are subject to the public charge rule. This form will be required for most persons in the family-based, employment-based and diversity lottery categories.
Who is Affected by the New Public Charge Rule?
The new rule does not create a new ground for deportation, but reinterprets an existing ground of inadmissibility. If you are applying for either a temporary status or for a green card, chances are that the new public charge rule may apply to you. The same is true if you are applying for an extension of status or a change of status.
If you already have a green card, chances are the new rule will not affect you unless you leave the U.S. for 180 days or more, and attempt to return. Applicants for naturalization will not be affected. Neither are persons who receive public benefits while they are in any of the following categories:
- Asylees and Refugees;
- Special Immigrant Juveniles (SIJS);
- Persons with T Status (Victims of Human Trafficking);
- Persons with U Status (Crime Victims);
- Persons with VAWA (Violence Against Women Act);
- Persons with NACARA;
- Persons with Registry;
- Persons with the Cuban Adjustment Act; and
- Applicants for Temporary Protected Status.
Addition of 5 New Benefit Programs
The new rule expands the list of state and federal programs that can be considered when applying the public charge test.
Previously, the agency only considered the following 4 programs:
- Supplemental Security Income (SSI)
- Temporary Assistance to Needy Families (TANF)
- State General Relief or Assistance
- A Medicaid program that covers institutionalization for long-term care
The new public charge rule adds the following 5 additional programs to the list:
- Non-Emergency Medicaid
- Supplemental Nutrition and Assistance Program (SNAP, formerly food stamps)
- Section 8 Housing Choice Voucher Program
- Section 8 Project-Based Rental Assistance
- Public Housing
Focus on 5 Statutory Factors
Under the new public charge rule, USCIS officers will shift attention away from the petitioning sponsor’s income and focus instead on the following 5 factors:
- Age: Applicants younger than 18 or older than the minimum early retirement age for Social Security will need to demonstrate why their age will not impact their ability to work.
- Health: Applicants will need to show whether their medical conditions will affect their ability to work and care for themselves.
- Family status: Applicant’s household include dependents and persons providing the applicant with more than 50 percent of support.
- Asset, resources and financial status: Whether the annual household income is at least 125% of the Federal Poverty Guideline, given the new household definition. Financial status will be measured by civil liabilities, credit history and credit score, past applications for or receipt of public benefits, an application for or receipt of a fee waiver for an immigration benefit after the effective date.
- Education and skills: Whether the applicant has adequate education and skills to obtain lawful employment with an income sufficient to avoid becoming a public charge. Factors include employment history, education level, occupational skills and licenses, English proficiency and the status of the applicant as a primary caregiver to another individual in the household.
Public Charge Bonds
The new rule allows for the posting of a bond in situations where the applicant needs to assure USCIS that he or she will not become a public charge. If it is determined that an applicant is likely to become a public charge, he may be offered to opportunity to post a bond of at least $8,100. The bond is considered breached if the applicant receives benefits from any of the 9 programs identified above for more than 12 months in the aggregate within any 36-month period.
Public Charge Rule – Additional Resources
- Protect Immigrant Families – by Fighting the Public Charge Rule
- California Sues Trump Over “Public Charge” Rule
- City and County of San Francisco v. USCIS Lawsuit
- 13 States File Lawsuit Against New Public Charge Rule
- DHS Finalizes Public Charge Rule (CLINIC)
PRACTICE ADVISORIES REGARDING PUBLIC CHARGE
- ILRC Submits Comment on USCIS Fee Rule (12-23-19)
- Public Charge Exemptions and Considerations (12-17-19)
- How to Analyze Public Charge Inadmissibility with Case Examples and Answers (12-16-19)