New Public Charge Rule Explained
A “public charge” rule has been an element of immigration law for a long time. However, under the direction of the Trump administration, the definition of public charge has changed. The rule affects people who apply for a green card from inside the United States and certain non-immigrants who are changing status. Specifically, the new public charge rule changes the way that the government evaluates intending immigrants filing an adjustment of status application (Form I-485).
Public charge has always been one of the grounds of inadmissibility for new immigrants. If an individual is inadmissible, admission to the United States or adjustment of status is not granted. All family-based applications were subject to these grounds, but other categories were exempt. In the past, the U.S. government defined a public charge as a person who is “primarily dependent on the government for subsistence,” as demonstrated by either (1) the receipt of public cash assistance for income maintenance or (2) institutionalization for long-term care at government expense. That definition has changed.
What the Government Will Review
U.S. Citizenship and Immigration Services (USCIS) will now make a determination if you will likely become a public charge at any time in the future based on certain criteria. When making a determination if you are more likely than not to become a public charge at any time in future, a USCIS officer will look at the following set of factors:
In order to obtain this background information, USCIS requires most applicants to file Form I-944, Declaration of Self-Sufficiency, and Form I-864, Affidavit of Support, with your adjustment of status package. The officer will evaluate all the factors above and make a decision based on the “totality of the circumstances.” That means that positive factors will be considered together with negative factors.
Coronavirus is Not a Public Charge FactorSeeking treatment for COVID-19 will not be considered a negative factor under the new public charge rule according to a USCIS statement.
“USCIS encourages all those, including aliens, with symptoms that resemble coronavirus (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services,” the agency said in the announcement. “Such treatment or preventive services will not negatively affect any alien as part of a future public charge analysis.”
There is nothing you can do about your age, but the USCIS officer will assess whether your age makes you more or less likely to become a public charge at any time in the future. If you are between the ages of 18 and 61, USCIS considers your age as a positive factor in the totality of the circumstances. This is because an applicant in this age range is generally within a working age. Applicants who are outside of this age range can overcome the negative age factor with other positive factors.
- You are 18 to 61 years of age
Being at least 18 years of age and less than 62 is a positive factor. Applicants within this age range are more likely capable of finding employment and being self-sufficient.
- You are 62 years of age or older
Being age 62 and older is a negative factor in the totality of the circumstances. However, this negative factor, can be overcome by a positive factor or positive factors, such as current employment, employment history, income over the 125 percent of the Federal Poverty Guidelines (FPG) threshold, having retirement savings or retirement benefits, or other non-governmental resources.
- You are under the age of 18
Being under the age of 18 is a negative factor. The weight of the factor, however, also depends on circumstances such as whether the applicant is able to earn an income through employment. Children enrolled in school will also be more employable in the future.
Significant health issues are likely to be viewed as a negative factor in determining the possibility of becoming a future public charge. An existing medical condition, especially one that’s likely to incur significant cost or greatly limit the applicant’s daily activities, will be considered a negative factor.
USCIS officers will use your medical examination (Form I-693 and any other report available) to evaluate your health. Generally, a Class A or Class B medical condition that is determined to interfere with your ability to provide and care for yourself, to attend school, or to work, or that is likely to require extensive medical treatment or institutionalization in the future, will be weighted as a very negative factor.
Class A conditions are medical conditions that render a person inadmissible and ineligible for a visa or adjustment of status. A Class A medical condition is a:
- Communicable disease of public health significance per HHS regulation;
- A failure to present documentation of having received vaccinations against vaccine-preventable diseases;
- Present or past physical or mental disorder with associated harmful behavior or harmful behavior that is likely to recur; and
- Drug abuse or addiction.
Class B conditions are defined as physical or mental health conditions, diseases, or disability serious in degree or permanent in nature. This may be a medical condition that, although not rendering an applicant inadmissible, represents a departure from normal health or well-being that may be significant enough to:
- Interfere with the applicant’s ability to care for himself or herself, to attend school, or to work; or
- Require extensive medical treatment or institutionalization in the future.
- You have no medical issues
Having no diagnosed medical issues as evidenced with the immigration medical exam reports is a positive factor.
- You have certain medical issues that significantly limit you
Certain medical issues as described above will be considered a negative factor. However, as with any negative factor, it may be outweighed by other positive factors. In the case of significant health issues, unsubsidized private health insurance is a very positive factor that can mitigate this issue. Alternatively, the applicant can rely on other financial resources that are sufficient to cover these costs.
USCIS considers your household size in relation to your income, assets and resources to determine whether the applicant is more likely than not to become a public charge in the future. For child applicants, USCIS reviews the income, assets and resources of household members in the parents’ household.
If the applicant is able to support him or herself and the applicant’s household members at 125 percent of the Federal Poverty Guidelines (FPG) for the applicant’s household size, then this is a positive factor. If the applicant is not able to support him or herself and the household members at 125 percent of the FPG for the respective household size, then this is a negative factor.
- You have household income at least 125% of FPG
If your household income is at least 125 percent of the Federal Poverty Guideline for your household’s size, this is a positive factor. Income that is at least 250 percent of the FPG is considered a very positive factor. For active duty military (except active duty for training) the threshold is reduced to 100 percent of the FPG.
- You have household income below 125% of FPG
If your household income is below 125 percent of the FPG for your household’s size, this is a negative factor. If the applicant’s annual gross income is less than 125 percent of the FPG, the applicant may submit evidence of ownership of significant assets such as savings accounts, stocks, bonds, certificates of deposit, real estate and other current assets.
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A USCIS officer will consider your assets, resources, and financial status when determining whether you are likely to become a public charge at any time in the future. All else being equal, the more assets and resources an applicant has, the more self-sufficient he or she is likely to be. Conversely, an applicant’s lack of assets and resources, including income, makes him or her more likely to receive public benefits.
Unfortunately, this is a “wealth test.” However, poverty alone is insufficient to establish a person is likely at any time to become a public charge in the future. This category is a deep dive into your financial history. As income has already been covered, we cover a few other major areas:
Credit Report and Score
USCIS will consider your financial liabilities and U.S. credit history if applicable. Credit reports contain information about an applicant’s bill payment history, loans, current debt, and other financial information. Credit reports may also provide information about work, residences, lawsuits, arrests, and bankruptcies.
In most cases, newly arriving immigrants will not have a U.S. credit report or score. USCIS policy dictates that the officer should not consider the absence of a report as a negative factor. You may obtain a free credit report. You are entitled to a free credit report once a year under the Fair Credit Reporting Act from each one of the three nationwide credit reporting agencies: Equifax, Experian, and TransUnion. Please note that USCIS may review any other liabilities not reflected in the credit report.
- You have a good credit report
A good credit report is a positive factor. A good credit report is one that shows on-time payment history and a lack of negative credit events.
- You have a poor credit report with negative history
Negative credit history is a negative factor in the totality of the circumstances and may include: delinquent accounts, foreclosures, debt collections, charge-offs (delinquent accounts deemed unlikely to be collected), repossession, judgments, tax liens, or bankruptcies. If you have a negative credit event which you believe to be untrue, challenge it with the credit agency. An officer must not consider any verified errors on a credit report or score.
There are various types of credit scores, but FICO scores are most common. Scores range from 0 to 850. Generally, a FICO score of 670 or higher is a positive factor. A FICO score below 670 may indicate some negative credit history. But it could also be associated with an individual with a newer credit history. A low credit score may count against you, but isn’t necessarily a disqualifying factor by itself.
- You have a good credit score
A good to exceptional credit score is a positive factor in the totality of the circumstances. Generally, a 670 and above is considered a good to exceptional credit score.
- You have a poor credit score
A poor credit score is a negative factor, which may indicate the applicant is incapable of supporting him or herself and any dependents. Generally, a credit score below 580 is considered poor.
Ability to Pay for Reasonable Medical Costs
Medical costs can be overwhelming. The USCIS officer will evaluate your ability to pay for reasonable medical expenses. If you have a significant health issue, particularly one that has high medical costs, USCIS will want reassurances that the expenses won’t leave you in a position that you are dependent on public benefits.
- You have health insurance
Private health insurance is considered a heavily weighted positive factor in the totality of the circumstances. However, subsidized health insurance may still be considered a positive factor. Although USCIS has not provided any specific guidance, it is generally better to sign up for a health insurance plan before filing an adjustment of status application.
- You have no health insurance
Lack of health insurance is a negative factor in the totality of the circumstances. As an applicant becomes older or has indicators of significant health issues in the future, this factor may carry more weight. Additionally, recent (within the past 36 months) or current receipt of Medicaid for applicants over 21, is a heavily weighted negative factor.
Applying for and/or receiving public benefits will likely be viewed as a very negative factor. Generally, this won’t be a common occurrence for most applicants. That’s because nonimmigrants typically are not eligible for these benefits. For now, USCIS does not review the receipt of these benefits by the financial sponsor or the applicant’s other family members.
If the evidence indicates that you have received, or have been certified or approved to receive, one or more public benefit(s), for more than 12 months in the aggregate within the 36-month period immediately before the application is filed, starting on or after February 24, 2020, this weighs heavily in favor of a finding that you are more likely than not to become a public charge at any time in the future. As part of the public charge inadmissibility determination, USCIS considers both cash and non-cash benefits including:
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF), commonly known as “welfare” which may be provided under another state name
- Federal, state and local cash assistance, sometimes called “General Assistance”
- Medicaid or other programs supporting long-term institutionalized care, such as in a nursing home or mental health institution
- Supplemental Nutrition Assistance Program (SNAP), commonly known as “Food Stamps”
- Section 8 housing and rental assistance
- Federal housing subsidies
- Non-emergency Medicaid benefits (with exceptions) for children under 21, people with disabilities, pregnant women, and mothers within 60 days after giving birth)
If you have previously applied for public benefits as listed above (at any point in the past), please speak to an immigration attorney to see how it may affect your situation.
- You have never applied for public benefits
Generally, most applicants will not have applied for or received benefits. Although not necessarily a positive factor, it removes any negative consideration.
- You have applied for or received public benefits
Current and past receipt of public benefits on or after February 24, 2020, is a negative factor in the totality of the circumstances. Receipt of one or more public benefits, for more than 12 months in the aggregate within the 36-month period immediately before the applicant’s adjustment of status, and starting on or after February 24, 2020, is a heavily weighted negative factor. Simply applying for a public benefit is not considered receipt. However, USCIS may consider the application a negative factor.
USCIS will evaluate your education and skills when determining whether you are likely to become a public charge at any time in the future. Education and skills are relevant to the public charge inadmissibility determinations because they affect the applicant’s ability to obtain and maintain stable employment. Valid tentative job offers may also be considered in the totality of the circumstances.
An officer may consider your role as a primary caregiver also. If you stay at home for the purpose of taking care of children, an elderly parent or other individual limited by a medical condition or disabilities, USCIS considers this a significant contribution.
Generally, a person with current employment or recent employment history will have more opportunities for employment in the future. The government prefers employable applicants because they are more likely to be self-sufficient in the future.
- You are employed or have recent employment
Being currently employed (if authorized) is a positive factor. If you are not authorized to work currently, recent job history in a previous country may be considered a positive factor. Being employed with an income above 250 percent of the Federal Poverty Guidelines (FPG) is considered a heavily weighted positive factor.
- You are the primary caregiver for children or someone else
USCIS considers household contributions through primary caretaking responsibilities as a positive factor. Being a primary caretaker is considered in the totality of the circumstances adjudication and may outweigh a negative factor related to the applicant’s education and skills because of lack of employment or lack of employment history.
- You have no employment experience
Being unable to demonstrate employment history or reasonable prospects of employment is a heavily weighted negative factor. However, being enrolled as a full-time student is a positive factor that can mitigate the lack of employment, particularly for younger people. Access to financial resources may also help outweigh this negative factor.
A person with more education will generally have more opportunities for employment at higher salaries. The government views applicants unfavorably if they don’t have a minimum of a high school diploma or equivalent secondary education certificate. Being a full-time student is also valued.
- You have a high school education or higher
Having a high school diploma or higher education such as a bachelor’s, master’s, or doctoral degree is a positive factor in the totality of the circumstances. (Provided they are enrolled in school, not having completed high school will not count as a negative factor for children.)
- You do not have the equivalent of high school education
Generally, a lack of education up to the high school level or equivalent is considered a negative factor.
An applicant who has specific skills and certifications is generally more easily employed and has less likelihood of becoming a public charge in the future.
Occupational skills as a mechanic, plumber, electrician, millwright, agricultural work, hospitality, welder, or other trade are valuable. Likewise, licenses for certain professions improve opportunity.
- You have occupational skills verified by a certification or license
Having a verifiable occupational skill is a positive factor. A certification or license that has been maintained for multiple years may indicate that the applicant may have additional positive consideration in that more employment opportunities may be available.
- You have no occupational skills
Having no employment skills is a negative factor.
Being proficient in English makes it easier to prove future employability. An officer may determine your ability to speak and understand English based on your ability to respond to questions normally asked in the course of an interview, if applicable. However, documentation with certifications or degrees is encouraged. The applicant only needs to demonstrate basic English skills for a positive consideration.
- You are a capable or fluent English speaker
Your proficiency with the English language will be viewed as a positive factor.
- You have very limited to no English language proficiency
No English proficiency or insufficient proficiency to enable you to gain employment may be a negative factor.
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Generally, all family-based adjustment of status applications will require the filing of Form I-864. The individual who petitioned the green card applicant must submit Form I-864 and act as a financial sponsor. However, other household members and/or a joint sponsor can join the petitioning sponsor to strengthen support.
USCIS reviews the annual income of the sponsor providing support to determine if he or she is able to support the applicant. Under the statute, the minimum income to establish a sufficient Form I-864 is generally 125 percent of the FPG (100 percent for active duty military) based on the sponsor’s household size plus the total number of sponsored immigrants and dependents supported by the sponsor. A sufficient Affidavit of Support is a positive consideration in the totality of the circumstances. However, USCIS considers other relevant factors related to the sponsor’s ability to support their household and the sponsored alien(s) even if his or her income meets the 125 percent of FPG threshold. An officer will give greater positive weight to a Form I-864 submitted by a sponsor who has greater income and assets available than the minimum required by the statute.
However, several factors can potentially dilute this support, giving it less positive weight. Circumstances that can reduce the positive weight of an otherwise sufficient Affidavit of Support include the sponsor’s:
- Receipt of public benefits in the United States
- Previous bankruptcy
- Receipt of a fee waiver for immigration benefits
- Previous and outstanding sponsorship of multiple applicants
- Your sponsor’s income and assets are at or above 125% of the FPG
A sufficient Affidavit of Support is a positive consideration in the totality of the circumstances. Greater positive weight will be given to an Affidavit of Support from a sponsor who has greater income and assets available than the minimum.
- Your sponsor’s support is compromised
An Affidavit of Support that does not meet the minimum (125 percent of the FPG) is insufficient and does not satisfy the requirement. Further, an otherwise sufficient Affidavit of Support will be given less weight if the sponsor’s support is compromised.
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