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).
Past Definition of Public Charge
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. This definition included:
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF), commonly known as “welfare”
- 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
Most immigrants are not eligible for these government benefits anyway. As a result, very few immigrants have been penalized for using them. It was also standard procedure to overcome these grounds of inadmissibility by submitting a Form I-864, Affidavit of Support, prepared by a financial sponsor (usually the petitioner). Therefore, even if the intending immigrant didn’t have the means to cover his or her basic expenses, the petitioner would promise to cover those expenses. Historically, the public charge rule has not prevented very many immigrants from obtaining permanent residence. Now, the government wants the intending immigrant to be self-sufficient.
New Determination of Public Charge
The government will now make a broader and deeper evaluation of the intending immigrant’s personal situation to determine if he or she is likely to become a public charge. The new policy will now consider an expanded range of government benefits. In addition to the benefits listed above, public charge determination could be made for prior use of:
- 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)
The USCIS officer will also consider many new criteria when determining the likelihood that an applicant will use government benefits in the future:
- Family status
- Assets, Resources and Financial Status
- Education and Skills
No one factor by itself will result in the approval or denial of an application. Inadmissibility based on the public charge ground is determined by the “totality of the circumstances.” In other words, the USCIS officer must consider all of these factors together to make a determination. Submission of a well-qualified Form I-864 Affidavit of Support will continue to be seen as a positive factor. Even with guidelines, the new policy is a subjective process. One immigration officer may view things different than the next officer.
We’ll take a look at some of these factors in more detail:
The new public charge rule considers an applicant’s age. Remember, the ideal green card applicant (in the U.S. government’s eyes), is self-sufficient. Therefore, the government will favor applicants in a working age. That means individuals who are age 18-61 years old will be viewed more favorably. They are more likely to be employable.
Health and Insurance
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. The immigration officer will consider this factor when making a decision. 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.
Assets, Resources and Financial Status
USCIS will want to know about your assets, resources and financial status. They’ll ask the same about other household members. Specifically, the immigration officer will evaluate income tax returns, current income, assets (such as a house and personal property), liabilities (such as mortgages, car loans and other debt), as well as credit scores. This area is extensive, but we’ll take a look a few specific components:
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.
Applicants with recent employment history may have an easier time finding a job. For that reason, applicants with employment history may be viewed more favorably. Obviously, having an existing job (through authorized employment) is optimal. However, most nonimmigrants aren’t authorized to work.
Generally, the applicant’s household must have an income that’s at least 125% of the Federal Poverty Guidelines (check guidelines here). However, that may not be enough. An applicant whose household income is barely exceeding the requirement could be considered a likely public charge if other factors are unfavorable. For example, a 78-year-old parent with medical conditions is at high risk of being found a public charge if the household income is not significantly over the minimum and there is no health insurance coverage.
Most recently arrived applicants won’t even have a U.S. credit score. That’s okay. Immigration officers are looking for negative factors such as bankruptcies, liens or other derogatory credit events. Generally, a credit score 670 or higher will be viewed positively. But that doesn’t mean applicants must have a high credit score.
Education and Skills
Education is a gateway to better employment. Thus, the public charge rule considers an applicant’s level of education. The government views applicants unfavorably if they don’t have a minimum of a high school diploma or equivalent secondary education certificate. Those with college degrees or higher will be viewed most favorably.
Skills may include occupational or professional skills as documented by a certification or license. Having documented skills suggests the applicant’s employability.
Being proficient in English makes it easier to prove future employability. If English is the applicant’s second language, he or she will need to provide documentation of English proficiency (such as a school certificate) or at least progress in an ESL class.
How This Affects Adjustment Applicants
Most adjustment of status applicants will be subject to the new public charge rule. In other words, you are likely affected if you will be filing Form I-485, Application to Register Permanent Residence or Adjust Status. The public charge rule will not apply to I-485 applicants whom Congress has exempted from the public charge test, such as refugees, asylees, and individuals in other special categories.
You Filed Form I-485 Prior to 2/24/2020
If you have already filed Form I-485, it is unlikely that the new public charge rule affects your case. No action is required on your part. You will know that you have successfully filed Form I-485 when USCIS issues a receipt number. Your written proof of filing is Form I-797C, Notice of Action. Commonly known as a receipt letter, USCIS mails you Form I-797C approximately 2-3 weeks after filing the Form I-485.
You Will File Form I-485 2/24/2020 or Later
If you are unable to file your adjustment of status package before February 24, 2020, you will be subject to the new public charge rule. Specifically, it must have a post mark before 2/24/2020. The new rule will be be very disruptive for two reasons:
You are required to use a new edition of Form I-485 and Form I-864. There is also a new mandatory Form I-944, Declaration of Self-Sufficiency. CitizenPath can support our customers with revised Forms I-485 and I-864. However, we do not expect to be able to support Form I-944 for several weeks. It is an extensive form with no legal precedent. If you must file your adjustment of status package after 2/24/2020 and before our service is available, we highly recommend that an immigration attorney help you prepare Form I-944.
- Case Scrutiny
The rule change introduces a new era of scrutiny. There is no legal history, and there are many unknowns. We do know that the government intends to be more restrictive of any intending immigrants that may be a public charge in the future. As explained above, the government has changed its definition of public charge to include a wider group of individuals.