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What is the Public Charge Rule and How Will It Affect Immigration?

What is the Public Charge Rule?

Our immigration laws have required intending immigrants to prove that they will not become a public charge upon admission to the United States since the 1880’s. The idea is nothing new. The public charge rule that went into effect on February 24, 2020 did not create a new obligation, instead it changed how the public charge requirement is interpreted and applied.

What was the standard before the new public charge rule?

Previously, immigration officers have said that a public charge is someone who is primarily dependent on the government for help, such as by receiving Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), Medicaid for long term care, or other  state or local general cash assistance.  This did not affect many green card applicants because most immigrants were already banned from using these welfare benefits so they had no access to them.  Also, most intending immigrants are required to have a financial sponsor with enough income or assets to ensure that the immigrant will not need to rely on government benefits in the future.  Since the financial sponsor enters into a contract requiring them to reimburse the public benefits that the intending immigrant may use, those intending immigrants were not deemed likely to become a public charge.

How does the new public charge rule differ from the previous method?

The new test to determine if someone is likely to become public charge looks more at the intending immigrant and less at the financial sponsor.  While a financial sponsor is still required for most intending immigrants, USCIS is now looking at the totality of the circumstances, with emphasis on the immigrant’s age, health, family status, financial status, assets, resources, education and skills.  By doing so, they are trying to determine if someone is more likely than not to receive public benefits for more than 12 months within a 36 month period in the future.   In addition to the services listed above, public benefits now include non-emergency Medicaid, Supplemental Nutrition and Assistance Program (SNAP), Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance and Public Housing.

Totality of the Circumstances Factors

Applicants for lawful permanent residency will be required to submit the new Form I-944 Declaration of Self-Sufficiency.  Information regarding the six main factors for likelihood of becoming a public charge is gathered on this form.

Age

USCIS is to consider whether the applicant’s age will impact his or her ability to work.  Positive consideration is given to persons between the age of 18 and 62, our primary work force.    Of course, applicants under 18 or over 62 may be working or have other means of support, such as from family members.  If an applicant is authorized to work but is not working, is not a full-time student,  has no recent employment history or reasonable prospect of future employment, it will be considered a heavily weighted negative factor toward determining likelihood of becoming a public charge.

Health and Health Insurance Coverage

USCIS will check to see if the intending immigrant has been diagnosed with a medical condition that is likely to require extensive medical treatment or a medical condition that will interfere with his or her ability to support and care for himself or herself, to attend school or to work.  USCIS will also be looking to see if the applicant has private health insurance or the financial ability to pay for reasonably foreseeable medical costs.  An applicant with private unsubsidized health insurance will be considered to have a heavily weighted positive factor while one who is uninsured and does not have the financial resources or ability for private health insurance will have a heavily weighted negative factor.

Family Status

The larger the family size, the more income the applicant will need to show.  Determining which family members applicants must count as part of their household will depend on the applicant’s marital status and age.   Applicants who are under 21 and unmarried have to count themselves, their parents, their siblings who either reside with them or who are supported by their parents and the applicants’ children.  Applicants who are 21 years old or older or who are married have to count themselves, their spouse, their children and their dependents.

Financial Status

Generally, the applicant should show an annual gross income of at least 125 percent of the federal poverty guidelines.  USCIS will look at the applicant and the applicant’s household members’ most recent IRS tax transcripts. If a tax return was not filed, an explanation must be given.  It is important to note that income earned while the applicant was working in the U.S. without employment authorization will be counted.  Additional non-taxable continuing income such as child support, alimony or Social Security can also be included.   The applicant and applicant’s household members assets will also be reviewed.   The applicant’s liabilities, such as unpaid taxes, mortgages, car loans, credit card debt and unpaid support will be evaluated.  Applicants are required to provide information regarding their credit history including a U.S. credit report and credit score.  Many applicants will not be able to obtain a U.S. credit report and will instead provide evidence of financial stability.   The intending immigrant will need to report receipt of or application for any of the nine public benefit programs listed above and any bankruptcy filings.  The public charge rule holds that household income, assets, resources and “support” of at least 250 percent of the federal poverty guidelines is a heavily weighted positive factor.

Education and skills

Applicants will need to show that they have the adequate education and skills to maintain lawful employment producing enough income to avoid becoming a public charge.  They will list and provide proof of high school and college diplomas received.  Any foreign education should be evaluated.   Vocational certificates need to be listed as well.

Who will be affected by the new public charge rule?

Anyone applying for admission to the United States is subject to the public charge grounds of inadmissibility.   This includes adjustment of status applicants filing for their green cards in the United States, applicants for immigrant visas abroad, applicants for nonimmigrant visas and non-immigrants applying to extend or change their status within the United States.  Applications for immigrant and non-immigrant visas filed abroad are overseen by the Department of State, which has its own policy similar to the public charge rule.   Immigrants applying at a Consulate abroad will need to complete a DS-5540 Public Charge Questionnaire instead of an I-944 form, but the information requested is similar.

Applicants for nonimmigrant visas such as student visas, tourist visas and temporary worker visas will need to prove that they have not accessed the listed public benefits.  Nonimmigrants in the United States seeking to extend their visa or change to a new visa category will need to demonstrate that they have not received any public benefits for more than 12 months in the aggregate within any 36 month period.   They do not need to show that they are not likely to receive benefits in the future, just that they have not received them in the past.

Most Lawful Permanent Residents will not have to address the public charge rule unless they have been continuously absent from the United States for longer than 180 days and are attempting to re-enter the country.  It is not taken into consideration when conditional permanent residents file I-751 forms to remove the conditions on their residency.   Filing of an I-90 to renew a resident alien card will not trigger a public charge review.  Most  naturalization applicants will not be subject to the public charge ground of inadmissibility, with an exception for those who traveled outside the U.S. for more than 180 days as a Lawful Permanent Resident prior to filing for Naturalization.

The new public charge rule does not apply to every intending immigrant and non-immigrant attempting to enter the United States.  There are multiple exemptions to the public charge grounds of inadmissibility.  Some of these exceptions are refugees, asylees, individuals applying for immigrant status because they are victims of domestic violence (VAWA applicants),  Deferred Action for Childhood Arrivals (DACA) applicants, Special Immigrant Juvenile Status (SIJS) applicants.

What will be the impact of the new public charge rule?

The public charge rule will have the greatest effect on family based immigrant applications, including the spouses, children and parents of United States citizens.  The totality of circumstances factors are defined in such a way to make it difficult for low-income, low-skilled, poorly educated, elderly and disabled applicants to overcome a public charge finding.  It will reduce the number of people eligible for green cards, causing some families to have to choose between living apart or leaving the United States and moving abroad to be together.

Contact Julie Beth Jouben, P.A. to Learn About the Public Charge Rule

At this point in time, there are still many unknowns with regard to the public charge rule.  A Clearwater immigration lawyer can help you understand how the rule will affect your application. At the law firm of Julie Beth Jouben, P.A., we can assist you in meeting the public charge requirements. Call Julie Beth Jouben, P.A. an immigration attorney in Clearwater, at 727-449-9929 and get the answers to your immigration law questions. Whether you have an issue obtaining your green card, bringing a family member to live in the United States, investing in a U.S. business from abroad, or naturalizing to become a U.S. citizen, we can give you the information that you need to make informed decisions.

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