Changes to the United States Citizenship and Immigration Services (USCIS) Public Charge Rule, scheduled to go into effect on February 24th, will fundamentally change how officers will determine inadmissibility for adjustment of status applicants and those seeking an extension or change of their current nonimmigrant status.
The Public Charge Rule will NOT apply to:
- Those seeking nonimmigrant status for the first time
- Immigrant visa applications processed through consular processing
- VAWA self-petitioners, Special Immigrant Juvenile applicants, Asylees, Refugees, U and T nonimmigrants and other humanitarian-based applicants.
At play is how “public charge” is evaluated and enforced. For years, the federal statute has used Form I-864 to determine whether a beneficiary has a financial safety net to prevent them from relying on public assistance. Simply proving a sponsor or sponsors had the income and/or assets to support a beneficiary was sufficient to avoid inadmissibility on public charge grounds. The new rule shifts the public charge assessment away from Form I-864 and introduces a new form – Form I-944 – to adjustment of status applicants. Form I-944, Declaration of Self-Sufficiency, creates new benchmarks to help USCIS determine whether a beneficiary has the ability to become financially self-sufficient. Form I-944 will not be required for nonimmigrant change of status or status extensions.
Public Charge Rule – Public Benefits Consideration
Under the new Public Charge Rule, USCIS will evaluate petitions based on whether the beneficiary is likely to receive public benefits in 12 months out of a 36-month period. The following programs are considered public benefits:
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- Any other federal, state, local or tribal cash benefit program
- Supplemental Nutrition Assistance Program (SNAP, formerly called “Food Stamps”)
- Section 8 Housing Assistance
- Section 8 Project-Based Rental Assistance
- Federally funded Medicaid; and
- Public Housing Under Section 9 of the U.S. Housing Act of 1937
Totality of Circumstances
As noted, the new Public Charge Rule moves assessment away from Form I-864 – under the rule, Form I-864 is just one of seven factors that will be considered by USCIS. In addition to the Form I-864 Affidavit of Support, USCIS officers will consider:
- Age – Whether the individual’s age places them at a high or low risk of needing public assistance.
- Health – Whether the individual’s health or existing medical condition place them at a high or low risk of needing public assistance.
- Family status – The size of the family, and how many people will need to be supported on the applicant’s income and assets, can weigh as a positive or negative factor. Generally, larger families are viewed as more likely to require public assistance.
- Assets, resources and financial status – This factor weighs the applicant’s assets, resources, and financial situation. USCIS will consider whether the applicant’s household income is at least 125 percent of the most recent Federal Poverty Guidelines. This factor takes into consideration the applicant’s credit score report, liabilities, and debts, whether the applicant has the financial resources to cover anticipated medical costs, whether they have health insurance, and whether they have applied for or received public benefits. Additional proof of assets will be considered.
- Education and Skills – USCIS will examine the applicant’s education level and English proficiency as it pertains to their ability to obtain and maintain gainful employment in the United States.
- Prospective immigration status and expected period of admission
In addition to these criteria, USCIS has determined four heavily weighted negative factors that apply to students with no recent or prospective employment, those who have received public assistance, those with medical conditions, and an applicant who has been found inadmissible or deportable on public charge grounds by an Immigration Judge. Conversely, heavily weighted positive factors apply to an applicant with sufficient household income and assets, an applicant who is work-authorized and employed at or above 250% of the FPG for their household size, or an applicant with private health insurance for the expected period of admission.
How to Prepare for Public Charge Rule
In cases where a beneficiary might not meet the burden of the new assessment, they should consider the should consider filing relevant petitions before the rule takes effect February 24. After February 24, consider the following.
If the applicant does not meet the employability threshold:
- Enroll in ESL classes to improve English language skills
- Enroll in job skills training programs
If the applicant does not meet the asset and financial services threshold:
- Immediately stop receiving any public benefits
- Pay off credit cards and any other outstanding loans
- Increase credit score
- Gain lawful employment based on work authorization
- Enter into payment installment agreement to pay off any significant outstanding medical bills
- Pay off any other medical bills
If the applicant does not meet the health threshold
- Secure health insurance
