On February 5, 2020, U.S. Citizenship & Immigration Services (USCIS) announced new policy guidelines and revised forms in connection with the Trump administration’s highly contested Inadmissibility on Public Charge Grounds final rule (“Final Rule”). The new guidelines and forms became effective nationwide on February 24, 2020.
Background
USCIS published initially published the Final Rule in late 2019. However, several nationwide injunctions temporarily stopped the rule from taking effect as scheduled. On January 27, 2020, the U.S. Supreme Court granted a stay of the nationwide injunction, allowing USCIS to implement the Final Rule in all states except Illinois. On February 21, the US Supreme Court voted 5-4 to lift the last remaining injunction shielding Illinois from the impact of the regulatory changes, allowing the Final Rule to take effect in all 50 states as of February 24, 2020.
What Does the New Public Charge Rule Change?
The 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 inadmissible to the United States.
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 to be applied to those who are more likely than not to receive any of nine benefits for more than 12 months in the aggregate within any 36-month period.
The Final Rule also shifts attention away from the green card petitioner/sponsor’s income and re-directs the inquiry 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 Final Rule allows for the posting of a bond for applicants who, in the opinion of immigration officers, might otherwise be deemed 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 unless specifically exempted, as discussed below.
Those most impacted by the Final Rule are foreign nationals filing for adjustment of status (a.k.a. “green card” applicants) in the United States. 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 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 Final Rule applies specifically to applications and petitions reviewed by USCIS in the United States, the Department of State (DOS) has adopted similar standards for immigrant and nonimmigrant 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. For instance, refugees, asylees, victims of crimes and trafficking, and certain VAWA self-petitioners are exempt from public charge inadmissibility, unless they are seeking a green card through family member petitions. Public charge laws 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.
According to USCIS, the Form I-944 is designed to assess the financial situation of adjustment applicants and whether they are likely to become a public charge at any time in the future. The form is 18 pages long and collects exhaustive information about the 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, credit history, liabilities and debts, health insurance, education level, employment history, and receipt of certain public benefits, among other factors.
Under the 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).
We anticipate that due to these added requirements, I-485 filings will take significantly longer to prepare and will further slow the government’s already backlogged case processing times. As such, we urge you to notify our office as early as possible if you are considering filing an adjustment application.
Form I-944 is only required for adjustment applicants in the U.S.; however, DOS recently announced 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 Changes of Status and Extensions of Stay?
As of the effective date of the Final Rule, 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.
What Are the ‘Public Benefits’ That Count Under the New Public Charge Rule?
USCIS has expanded the list of public benefits that can be considered under the public charge condition. Before the Final Rule became effective, the agency could only consider receipt of three cash assistance programs – Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance – as well as Medicaid for long-term institutionalization.
The Final Rule expands the list of designated 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).
For more information on the new public charge rule and requirements, or to discuss other immigration matters, please reach out to your KILP contact. Input on this client alert also came from the following Klasko attorneys:
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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