Public Charge Rule Explained
A “public charge” rule has been an element of immigration law for a long time. Public charge is 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 green card applications are subject to these grounds, but other categories may be exempt. The U.S. government defines 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. Some confusion surrounds the public charge rule due to temporary changes during the Trump administration.
The Trump administration changed the definition of public charge. From approximately February 24, 2020 through March 8, 2021, the Trump administration's stricter, more onerous version of the public charge rule was in effect. Criticized as a "wealth test" for immigrants, this version of the rule forced intending immigrants to qualify on several income and/or wealth-based criteria. During this time, USCIS required most green card applicants to submit Form I-944, Declaration of Self Sufficiency.
The Biden administration facilitated the return to the "old" public charge rule that was already in place prior to the Trump administration's changes. On or after March 9, 2021, applicants should not provide Form I-944 or any evidence or documentation required on that form with their Form I-485.
Form I-864, Affidavit of Support
Most all family-based adjustment of status applications will require the filing of Form I-864, Affidavit of Support. 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. The purpose for filing Form I-864 is to remove the public charge ground of inadmissibility.
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 immigrant(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
When preparing Form I-864, it is generally necessary that the household income be at a level equal to or greater than 125 percent of the federal poverty guidelines (FPG):
- Your sponsor's income and assets are at or above 125 percent 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.
Determining household size and household income for your place of domain can be difficult.
When preparing the Affidavit of Support on CitizenPath.com, we'll help you make these determinations.