New Public Charge Rules Go Into Effect for Most Green Card Applicants and Others

Beginning on February 24, 2020, DHS and the Department of State (DOS) began implementation of a new standard of whether an applicant for admission to the U.S. or for adjustment of status is likely to become a “public charge” under the inadmissibility ground in the immigration laws. “Public charge” is not defined in the INA, but since 1999, the term “public charge,” as written in the Federal Register refers to a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionalized for long-term care at government expense.” Most applicants for adjustment of status will be required to complete a lengthy and burdensome 18-page new Declaration of Self-Sufficiency, Form I-944, with supporting documentary evidence.  Immigrant visa applicants at U.S. consulates will be required to complete a shorter “Public Charge Questionnaire,” Form DS-5540.

Adjustment of Status by USCIS
Under the new rule, a public charge inadmissibility determination will be made by USCIS by using a totality of the circumstances approach that weighs the foreign national’s age, health, family status, education and skills, assets, resources, and financial status. Form I-944 not only requires information about these attributes, but in order to rely on them as positive factors, documentary evidence is required. For example, not only must health insurance information be provided but also a copy of the health insurance card as well as the health insurance policy. For foreign graduates, in order to get credit for a foreign master’s degree, that degree must be evaluated to be the equivalent of U.S. degree. For assets such as property, formal appraisals are requested. (It is unclear if, for example, USCIS will ultimately accept instead a state tax assessment as proof of the property’s value). Credit scores from one of the three official credit companies (Equifax, Experian, and TransUnion) is also required. To rely on bank account assets, 12 months of bank statements for each account must be provided. While gathering this kind of information is not necessarily difficult, it is time-consuming, burdensome, and is likely to make the process more expensive.

USCIS will be taking into account a broad range of positive and negative factors, and some factors will be more heavily weighed than others but further guidance has not been provided. The four heavily weighted negative factors include (1) having received public benefits after 02/24/2020; (2) the inability to demonstrate current employment, recent employment history, or a reasonable prospect of future employment; (3) having been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the immigrant’s ability to provide for themselves, attend school, or work; and the immigrant is uninsured and has neither the prospect of obtaining private health insurance, nor the financial resources to pay for reasonably foreseeable medical costs; and (4) the immigrant was previously found inadmissible or deportable on public charge grounds.  The three heavily weighted positive factors are (1) that the immigrant’s household has income, assets, or resources; (2) that the immigrant is authorized to work and is currently employed; and (3) that the immigrant has private health insurance. In the instance that a public charge determination is made, the person can request a public charge bond issued by USCIS.

Generally, the rule applies to most adjustment applicants – even those who are not required to submit with their application, Form I-864, Affidavit of Support.  Per the statute, the rule does not apply to refugees, asylees, Afghans and Iraqis with special immigrant visas, and certain nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, special immigrant juveniles, or to those who DHS has granted a waiver of public charge inadmissibility.

The public charge determination also impacts a category of other foreign nationals seeking admission who could be deemed “inadmissible” including: nonimmigrants being inspected for admission to the United States at a port of entry (POE) or seeking a change or extension of status; persons with an immigrant visa at a POE; green card  holders returning to the United States after six months or more; and persons who are seeking admission after entering without inspection.

Consular Processed Visas
For those applying for immigrant visas at U.S. consulates, the DOS had already published revised sections of its Foreign Affairs Manual (FAM) that govern “public charge” for those individuals wishing to immigrate to the United States. The FAM provides instructions for consular officers in U.S. embassies and consulates abroad to use to make decisions about whether to grant non-U.S. citizens permission to enter the U.S.  In addition to the changes made by DOS in the Fall, now it is also requiring completion of a Public Charge Questionnaire, DS-5540, by intending immigrants.

DOS had already required that factors (age, health, income, education, family situation, etc.) be considered in the public charge test. And, while the affidavit of support is a positive factor in the totality of the circumstances test is not enough on its own to protect an individual from a determination that the person is likely to become a public charge. In addition, changes in evaluating a sponsor’s affidavit of support and the use of noncash benefits by applicants, sponsors, and family members suggests that the sponsor’s use of benefits could be considered.

Also, applicants will need to provide proof of medical insurance or other ability to pay medical expenses in the U.S. during their visa interview. Applicants will need to demonstrate that they have job skills, provide information about their job history, and explain any periods of unemployment or job changes. They may also need to provide information about their plans for employment once they immigrate to the U.S., or whether they have a job offer.

Unlike Form I-944, most supporting evidence is not required with the DS-5540 although it may be prudent to include such documentation.

Foreign nationals who go through consular processing in their home country before entering the U.S. on nonimmigrant visas may also be impacted, although the conditions for obtaining a nonimmigrant visa are normally sufficient to overcome the public charge exclusion, absent evidence to the contrary.

Bottomline:  USCIS and DOS just made it harder for foreign nationals to obtain permanent residency, and the new requirements will make it difficult for people of more modest means to qualify.