In immigration law, public charge is a ground of inadmissibility to the United States.
Grounds of inadmissibility establish the reasons as to why a person could be denied a green card, visa or admission into the United States.
When deciding whether to grant an applicant a visa or green card, an immigration official must test whether the applicant is likely to depend on certain government benefits in the near future.
This would make an applicant a “public charge”.
The Immigration Act of 1882 made it impossible for immigrants who were unable to take care of themselves without a public charge to become American citizens.
The rule also barred insane persons, persons suffering from contagious diseases, persons who have been convicted of a felony from becoming American citizens.
Through the Immigration Act of 1903, immigrants who became a public charge within their first two years in the United States were to be deported.
The New Public Charge Rule Under Trump Administration
Under the Trump administration, the definition of public charge has changed.
The new rule has changed the standards the Department of Homeland Security uses when determining whether an immigrant is likely to become a public charge in the future.
The rule now affects people who apply for a green card from inside the United States and certain non-immigrants who are changing their status.
The rule came into effect on February 24, 2019, and changes the way the immigration officials evaluate immigrants who are filing an adjustment of status application.
Who is subject to the new public charge rule?
The following groups of people are subject to the new public charge rule:
- Applicants seeking nonimmigrant visa abroad
- Applicants seeking an immigrant visa abroad
- Applicants for adjustment of status in the United States
- Applicants for admission at the U.S. border who have been granted an immigrant or nonimmigrant visa
- Nonimmigrants applying for an extension or change of status within the United States
Who is most affected by the new public charge rule?
The non-citizens most affected by the public charge ground of inadmissibility are those seeking lawful permanent resident (LPR) status based on a family relationship. These include:
- Spouses, children, and unmarried sons and daughters of U.S. citizens or lawful permanent residents
- Parents, siblings, and married sons and daughters of U.S. citizens.
Sponsorships by a U.S. employer are also affected.
For non-immigrants such as students and tourists, the new rule will require them to prove they have not accessed certain benefit programs at the time they apply for an extension or a change of their nonimmigrant status.
Lawful permanent residents who have been absent from the United States for a continuous period over 180 days are also subject to the grounds of inadmissibility. There might be questions on their likelihood of becoming a public charge when they seek reentry at a port of entry.
What factors are considered in the new public charge rule?
Instead of assessing whether an applicant is likely to become primarily dependent on the government for income support, the new rules define a public charge as a person who is likely to receive any number of public benefits for more than 12 months over any 36 months.
The rules also allow immigration officials to consider English proficiency, a person’s credit score, medical conditions and whether the person has access to private health insurance.
The rules now require immigrants to attach a new form, I-944, Declaration of Self-Sufficiency when applying for a green card through adjustment of status and “DS-5540, Public Charge Questionnaire” when applying for a green card through consular processing, in addition to the many other forms already required as part of an application for permanent residency.
Discussion of the factors
Under the new rule, inadmissibility based on the public charge ground is determined by looking at the factors outlined in the statute.
This is then used to decide the applicant’s likelihood of becoming a public charge at any time in the future based on the totality of their circumstances.
An applicant need not have received public benefits in the past to be subject to public charge inadmissibility. The following factors are considered:
- Family status
- Assets, resources, and financial status
- Education and skills
- Affidavit of support
How will the applicant’s age be evaluated?
According to the new rule, the USCIS will consider if the age of the applicant will impact his or her ability to work.
Even though no further information is provided, it will consider the applicants between age 18 and 62.
For applicants for admission under age 18, USCIS will give weight to the availability of outside support from a parent and any other evidence addressing the resources and assets available to the child in the totality of the circumstances.
It will be considered a heavily weighted negative factor if the applicant is authorized to work, not a full-time student, and is unable to demonstrate current employment, recent employment history, or a reasonable prospect of future employment.
This is more likely to affect applicants between the ages of 18 and 61.
How will the health of the applicant be evaluated?
According to the new rules, the USCIS will be determining if the applicant has been diagnosed with a medical condition that is highly likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide and care for himself or herself to attend school, or to work.
In making this determination, USCIS will refer to the civil surgeon’s medical report (Form I-693) that is a required part of the application process.
The USCIS could also consider other evidence of the medical condition.
The agency also requires that applicants for an immigrant visa show enrollment in an approvable health insurance plan or the willingness to enroll within 30 days of admission.
How will the health insurance coverage of the applicant be evaluated?
Applicants who have a medical condition described above must show evidence that they have or are likely to have private insurance or possess the financial resources to pay for future medical costs.
Private health insurance does not include state-funded coverage, although it includes subsidized Affordable Care Act (ACA) coverage.
If the applicant is not insured and does not have the ability or financial resources to secure private health insurance, this will constitute a heavily weighted negative factor and likely result in a finding of public charge.
If the applicant has private unsubsidized health insurance, this will be considered a heavily weighted positive factor.
What education and skills must the applicant have?
According to the new rules, the USCIS will consider whether the applicant â€œhas adequate education and skills to either obtain or maintain lawful employment with an income sufficient to avoid being more likely than not to become a public charge.
Form I-944 includes questions regarding the applicant’s education and occupational skills.
It asks specifically whether the applicant has a high school diploma or equivalent degree, as well as any higher degrees.
Evidence of these degrees or certifications can include any transcripts, diplomas, or letters from the issuing institutions.
The Form I-944 instructions state that foreign education should include an evaluation of equivalency to education or degrees acquired at accredited schools in the United States.
It directs applicants to the National Association of Accredited Evaluation Services for a list of organizations that provide equivalency evaluations.
Applicants who are over 18 and currently unemployed, but who are the primary caregiver of a child, elderly person, or ill or disabled individual should submit a statement explaining why that has limited their ability to work.
The person for whom they are providing care must be a household member.
How about English Proficiency?
The new rules list whether an applicant is proficient in English or proficient in other languages in addition to English.
Form I-944 asks the applicant to list the certifications or literacy courses attended or currently attending, the dates the certificates were obtained, and the name of the person who issued them.
This could include high school diplomas and college degrees. The form does not allow the applicant to demonstrate English proficiency with other documentation.
What is the applicant’s required income, assets, and resources?
The new rules stipulate that the applicant should show that they have an annual gross income of at least 125 percent of the federal poverty guidelines (FPG).
The guidelines are updated every year by the Health and Human Services.
This rule, however, does not apply to applicants who are on active duty, other than training, in the U.S. Armed forces, who need to evidence 100 percent of the federal poverty guidelines.
|2020 Minimum Annual Income Requirements for green card applicants: 125% of Federal Poverty Guidelines|
|Number of people in your household||Applicants in 48 contiguous states, D.C., and U.S. territories||Applicants in Alaska||Applicants in Hawaii|
|*For each additional person, add||$5,600||$7,000||$6,437|
The income of the applicant is measured by the annual gross income reported on the most recent tax-year transcript from the Internal Revenue Service (IRS Form 1040).
Even though the rules require only the submission of the previous year/s tax return as evidence of assets, resources and financial status, they require three years of tax returns as evidence of the applicant’s status.
If the applicant did not file a tax return in the previous year, he or she should explain why such a transcript is not available, such as the applicant did not earn enough to incur a tax liability.
In that case, the applicant can submit other credible evidence of income, such as a W-2 or a Social Security Statement that provides a history of total annual income.
The applicant should also be able to include wage statements and an employer’s letter.
Income earned while the applicant was working in the United States without employment authorization will be counted.
Applicants who incurred a tax liability and failed to file a return should file one late, which may require payment of past taxes and any penalties.
Assets and resources
If the applicant cannot evidence the above amount of income, then assets may be considered to make up for the shortfall.
The assets can either belong to the applicant or family member who is included in the household size.
Such assets must be significant and convertible to cash within one year.
These assets could either be held within or outside of the United States and include savings accounts, stocks, bonds, certificate of deposits, retirement and educational accounts as well as real estate.
The agency will put into consideration the civil liabilities of the applicant.
Such liabilities include mortgages, unpaid child or spousal support, liens, unpaid taxes, credit card debt and any other loans.
Applicants must also be able to provide information concerning their credit history.
Such information includes a U.S. credit report from one of the three credit reporting agencies and the credit score.
Form I-944 requires applicants who do not have a credit report or score to submit a statement from one of the three agencies verifying that they do not have one.
What does the rule mean by family status?
The new rule addresses how to calculate the applicant’s family size to determine household income.
The larger the family size, the more income the applicant will need to establish.
As detailed below, which family members the applicant must count as part of the household depends on whether the applicant is unmarried and under 21 or is over 21.
Applicants who are under 21 and unmarried
Applicants who are under 21 and unmarried must count the following family members as part of the household size, in addition to themselves:
- their children (unmarried and under 21) physically residing with them
- their children not physically residing with them but for whom they provide or are required to provide at least 50 percent of their financial support
- their parents, legal guardians, or any other individual providing or required to provide at least 50 percent of their financial support
- their parents or legal guardians other children who are physically residing with them
- their parents or legal guardians other children who are not physically residing with them but for whom the parent or legal guardian provides or is required to provide at least 50 percent of their financial support
- any individuals to whom the parents or legal guardians provide, or are required to provide, at least 50 percent of their financial support, and
- any individuals who are listed as a dependent on the parent’s or legal guardian’s federal income tax return.
Applicants who are 21 years or older or married applicants who are 21 years or older or married must count the following family members as part of the household size, in addition to themselves:
- their spouse if physically residing with them
- their children physically residing with them
- their other children not physically residing with them but for whom they provide or are required to provide at least 50 percent of their financial support
- any individuals (including a spouse not physically residing with them) to whom they provide, or are required to provide, at least 50 percent of the individual’s financial support
- any individuals who are listed as dependents on the applicant’s federal income tax return
- any individuals who provide at least 50 percent of the applicant’s financial support, and
- any individual who lists the applicant as a dependent on his or her federal income tax return.
Which publicly funded benefits may be considered for public charge purposes?
The new rules have expanded the list of publicly funded programs that an immigration officer may consider when deciding whether someone is likely to become a public charge or not.
Under the new rules, federally funded Medicaid, the Supplemental Nutrition Assistance Program (SNAP), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.
All use of cash aid could make an individual inadmissible under the public charge ground.
The publicly funded benefits that the Department of Homeland Security will consider include:
- Any federal, state, local, or tribal cash assistance for income maintenance
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)
- Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
- Section 8 Housing Assistance under the Housing Choice Voucher Program
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
- Public Housing under section 9 the Housing Act of 1937.
- Federally funded Medicaid (with certain exclusions)
What publicly funded benefits will DHS not consider?
- The receipt of Medicaid for the treatment of an emergency medical condition.
- Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act.
- School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law.
- Medicaid benefits received by an alien under 21 years of age
- Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.
- Unemployment compensation
- Job training programs
- Emergency disaster relief
- Foster care and adoption assistance
- Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans benefits, and other forms of earned benefits
What factors weigh heavily in favor of a determination that someone is likely to become a public charge?
According to the DHS, the following factors could indicate that someone is highly likely to become a public charge:
- When someone is not a full-time student and is authorized to work but cannot show current employment, recent employment history, or a reasonable prospect of future employment.
- When the person has received or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period,
- When the person has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the ability to provide for themselves
- When the person has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public chargeÂ grounds.
What are the exceptions to the public charge rule?
According to the new public charge rule, the following groups of people are not subject to the public charge ground of inadmissibility:
- Refugee applicants and refugees who are applying for adjustment of status
- Asylum applicants and asylees who are applying for adjustment of status
- Applicants for withholding of removal or relief under the Convention Against Torture
- Applicants for initial or re-registration of Temporary Protected Status (TPS)
- Applicants for initial or renewal of Deferred Action for Childhood Arrivals (DACA) status
- Cubans who are applying for adjustment of status under the Cuban Adjustment Act
- Amerasians who are applying for adjustment of status
- Afghan and Iraqi interpreters and translators who are applying for special immigrant visas (SIV)
- Applicants for Special Immigrant Juveniles Status (SIJS)
- Victims of certain crimes who are applying for a U nonimmigrant visa or U visa holders applying for adjustment of status
- Victims of trafficking who are applying for a T nonimmigrant visa; T visa recipients who are applying for adjustment of status no longer have to seek a waiver of public charge inadmissibility
- Victims of domestic violence who are applying for relief under the Violence Against Women Act (VAWA), including approved self-petitioners who are applying for adjustment of status
- Applicants for “registry” based on their having resided in the United States since before January 1, 1972
- Applicants for benefits under the Nicaraguan Adjustment and Central American Relief Act (NACARA)
- Applicants for benefits under the Haitian Relief and Immigrant Fairness Act (HRIFA)
- Lautenberg parolees who are applying for adjustment of status.
How does the new public charge rule affect the adjustment of status applicants? (Form I-485)
The final rule requires applicants for adjustment of status who are subject to the public charge ground of inadmissibility to report certain information related to public benefits.
The new regulations will make it more difficult for an applicant for adjustment of status or for an immigrant visa to show that he or she is not likely to become a public charge.
In determining inadmissibility, USCIS defines public charge as an individual who is likely to become primarily dependent for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.
USCIS will use a totality of the applicant’s circumstances standard in determining whether an applicant is likely to become a public charge at any time in the future.
The applicant’s circumstances will be measured by factors like age, health, family status, assets, resources, and financial status, education and skills as well as the affidavit of support.
Does the new public charge rule affect applicants going through consular processing?
The Department of State (DOS) is also following the DHS guidelines.
This means that the Department is also implementing the new rule relating to public charge inadmissibility.
Consular Processing applications with interviews after February 24, 2020, can be asked to complete the new public charge questionnaire form, DS-5540, and will be evaluated under the new Department of State rule.
Consular officials may not deny a case based on public charge without first allowing applicants to fill out the DS-5540 and provide supporting documentation.
Public Charge Rule Checklist
U.S. Citizenship and Immigration Services has published revised forms consistent with the final rule on the public charge ground of inadmissibility, which the U.S. Department of Homeland Security as well as USCIS is using.
Applicants for adjustment of status subject to the public charge ground of inadmissibility and the Final Rule will be required to submit Form I-944, Declaration of Self Sufficiency.
Certain applicants whom USCIS invites to submit a public charge bond will use the new Form I-945, Public Charge Bond, for that purpose, and the new Form I-356, Request for Cancellation of Public Charge Bond, to request cancellation of a public charge bond.
In conclusion, the new rules direct immigration officers to consider several factors related to an immigrant’s economic situation, education, and health.
In so doing, the new rules encourage officers to use their own discretion in making important decisions about whether a person can immigrate to the United States.
The discretionary consideration of these factors under the new rules will impact green card applicants from low-income families.
Start Understanding the New Public Charge Rule
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