Public Charge Rule

Public Charge Rule Summary

By Davidson & Seseri

The effective date of the new public charge rule is February 24, 2020. It defines public charge as a noncitizen who receives or is likely to receive one or more of the specified public benefits for more than 12 months in the aggregate within any 36-month period. The past receipt of public benefits or the likelihood of future receipt of public benefits concern the following programs:

• Any federal, state, local, or tribal cash assistance for income maintenance, including:
  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names);
• Supplemental Nutrition Assistance Program (SNAP)
• Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f
• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937
• Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy)
• Public housing under section 9 of the U.S. Housing Act of 1937

Benefits received prior to the effective date of the new rule, February 24, 2020, will not be counted unless they meet the definition of means-tested public benefits under the previous rule. The test is a totality of the circumstances test focused on the intending immigrant’s qualifications rather than just the sponsor’s willingness to provide support. The totality of the circumstances refers to a discretionary assessment of eligibility based upon the applicant’s overall likelihood to become a public charge of the U.S. government. In this assessment, USCIS has published rules that identify a list of key factors, some of them given considerably more negative or favorable weight. The new forms implementing this rule are the I-944 published by USCIS, governing applications for permanent residents in the United States, and the DS-5540, published by the State Department, which is required for immigrant visas through U.S. consulates abroad. Non-immigrants applying for visas abroad as well as for extension or change of status in the United States are also subject to the new rules. However, for non-immigrants, the submission of the I-944 or the DS-5540 is not a requirement.

The new rule keeps the requirement for family sponsored permanent residents and immigrants, that the sponsor file an I-864, Affidavit of Support. It is now one of the considerations for the overall totality of the circumstance determination by USCIS and the consulate – but it is no longer dispositive by itself. This means the applicant for permanent resident status or an immigrant visa must still establish in their applications that they are not likely to become a public charge. The I-864 sponsor must still establish he or she has income that meets or exceeds the 125% of poverty guideline test dependent upon size of household for the sponsored individual to be minimally eligible. This determination also will consider readily liquid assets such as a bank account or stock portfolios and even the value of real estate through a professional appraisal. In order to meet the Affidavit of Support requirement, the sponsor must show that they have assets equal to five times greater than 125% of the poverty guideline for their family size. Where the intending immigrant is the spouse of a U.S. citizen, the asset requirement is three times greater than 125% of the poverty guideline for their family size. The valuation of the asset is averaged over the previous 12 months since stocks and bank accounts fluctuate. Additionally, the income of the sponsor can normally be added to the averaged value of the asset to make the calculation. The ability to demonstrate income at 250% of poverty guidelines is considered a strong positive factor in the public charge inadmissibility consideration.

The new public charge rule implemented through completion of Forms I-944 and DS-5540, will allow USCIS and the State Department to gather information about the applicant so they can determine if there is a public charge problem when seeking permanent residency or an immigrant visa. The categories loosely identified in the public charge rule include:

• Age
  • 18-61 must demonstrate ability to self-support and are expected to be employed with a few exceptions
  • 62 and over is a negative factor that can be overcome by other positive factors
• Health
  • Private health insurance is a strong positive factor
  • Chronic or serious health conditions is a strong negative factor
• Family Status
  • Income, assets, and liabilities of close family members count
  • If joint sponsor is not a family member or has sponsored many others, joint sponsor’s affidavit will not be weighted very favorably
• Assets
  • If applicant or sponsor has liquid assets that, divided by 5 (or by 3 if married to U.S. citizen), are 250% of poverty guidelines, that is a strong positive factor
• Financial Status
  • Income earned through unauthorized employment will be counted
  • Ability to demonstrate job offer is considered a positive factor
  • Being the caregiver for a person outside of the home where not being compensated is a negative factor
  • Having work authorization but not working is a negative factor
• Education and skills
  • Language training in English and other languages
  • At least a high school degree
  • Professional programs and certificates

The USCIS adjudicating officer or consular official abroad, will also look at the likelihood that applicant will be reliant on public benefits for support for at least 12 out of 36 months in aggregate.  If the applicant receives two different benefits in the same months, that month counts as two months.

The new form I-944 requires the applicant for adjustment of status to permanent residency to provide additional evidence as part of the application process. The additional evidence requested is a significant increase in the paperwork needed to properly document an application for permanent resident status. The new evidence requested includes:

• Three years of IRS Tax Transcripts
• A credit report or proof that no credit report exists from one of the three National Credit Bureaus
• Proof of educational/professional qualifications with foreign degrees valuated by an educational equivalency agency accredited by the National Association of Credential Evaluation Services prior to submission
• Provide proof that you have secured or will secure health insurance (especially relevant for those with illnesses and elderly)
• Information and documentation concerning income, assets, and liabilities for all immediate family members in same home, those who are claimed as dependents on taxes, and any other individuals even if not in the home who rely or on who applicant relies for at least 50% of support
• Information on whether the applicant has ever filed for bankruptcy in the US or abroad
• Explanation of derogatory information contained in credit report
• Documentation and disclosure of previously received public assistance and any pending applications for assistance as well as current benefits being received

The State Department has indicated that for individuals that will consular process their immigrant visas, only the form DS-5540 must be submitted, and that no supporting evidence is required. The applicant will be notified if such additional evidence, as described above, will be necessary Nevertheless, it is recommended that immigrant visa applicants prepare a packet of supporting documents for their interviews in anticipation of a potential request by the consular officer so as to avoid unnecessary delays in immigrant visa processing.

There are categories of applicants for permanent residence that are not subject to the new public charge rules.  They include:  Victims of crime (U and T visas), informants (S visas), TPS, DACA, VAWA, Asylum, Refugee, Asylee and Refugee permanent residence applicants, I-751 Applicants (removal of conditions on permanent residence), I-90 Applicants (permanent residence renewal or replacement), N-400 naturalization applicants .

Additionally,  there are some exemptions that apply to all categories of applicants.  They include:

• Benefits received prior to 02/24/2020, unless also prohibited under the prior regulation in effect
• Benefits received while under an exempt category will not be considered for purposes of determining public charge applicability in conjunction with a non-exempt benefit application
• Benefits received while minor (under 21)
• Benefits received by applicant’s family members
• Benefits received by pregnant woman during pregnancy and for 6 weeks subsequent to birth

These new public charge rules apply to applicants in the US applying for permanent residents, immigrant visa applicants, and in many ways, to nonimmigrant visa applicants, and individuals presenting themselves at the border for admission as immigrants or nonimmigrants.    A permanent resident is subject to the new rule by staying out of the United States for more than 180 days and returning for inspection and admission due to the definition of entry found in the INA.  Nonimmigrants, including B-2 visitors, but also F-1 students, and even H-1B professional workers, are subject to the new rule when they apply for a visa or re-enter on an existing visa after February 24, 2020.  These individuals will be evaluated by consulate and CBP at ports of entry under the new standards.

Finally, processing times within the United States will likely be affected. The initial review by USCIS of applications for permanent residency will likely take longer since there is more evidence being considered when it is initially reviewed for its completeness. There is also going to be more Requests for Evidence (RFEs) at USCIS field offices and 221(g) denials following interviews at consulates, since this a complex change in the rules that will take time and considerable effort to comprehend for both the general public, DHS and the State Department.  We are also concerned that USCIS officers during permanent resident interviews will apply these new rules initially without uniformity, which could result in additional delays in the overall process and possibly a higher denial rate.

In light of these significant and complex changes to the immigration application process it is highly recommended that potential applicants consult with an attorney prior to initiating their immigration process.

This article is for informational purposes only. It is not meant to and cannot substitute the advice of and representation from a competent immigration attorney. Schedule a consultation with our attorneys at Davidson & Seseri.