Public Charge Update 2020

U.S. Citizenship and Immigration Services (USCIS) announced a massive rule change on October 15, 2019, that changes how officers will determine inadmissibility on the grounds of “public charge.” For the time being, enforcement of the Public Charge Rule is blocked by a nationwide preliminary injunction. However, this new rule will seriously increase how many applicants are found inadmissible on public charge grounds. 

Under the new rule, agencies must consider the totality of the circumstances and try to anticipate the future to guess whether applicants for adjustment of status to lawful permanent residence, applicants for admission to the United States, and applicants for an immigrant or nonimmigrant visa will become a public charge “at any time” in the future. 

The U.S. Department of Homeland Security (DHS) regulation puts similar conditions on change of status (COS) and extension of stay (EOS) nonimmigrant applicants. 

The new Public Charge Rule is NOT retroactive and only applies to applications filed after the rule takes effect. Anybody who submitted an application before the effective date will not be affected. 

Let’s look in more detail at the new rules and how they could affect your application.

More Focus on the Applicant 

With the current Immigration and Nationality Act (INA), applicants are inadmissible if it’s thought that they are “likely at any time to become a public charge.” The INA lists 5 factors that should be taken into account to make this determination:

• Age
• Health
• “Family status”
• Assets, resources, and financial status
• Education and skills 

Significant changes to public charge determinations haven’t been made since 1996 when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) and the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). That’s when Congress created the legally enforceable Affidavit of Support (Form I-864). 

Prior to the 1996 changes, applicants showed that a sponsor was promising to ensure the applicant’s wellbeing to prevent them from becoming a public charge. However, these support promises at the time were not enforceable. 

With the new law, Congress hoped that the family-based petitioner would become a financial safety net for the immigrant “rather than taxpayers.” 

Now, the legally binding Form I-864 is required in nearly all family-based immigration cases and some employment-based cases when the underlying petition was filed by a U.S. citizen or permanent resident relative, or by an entity in which such a relative has a significant ownership interest (5% or more) in the same. 

Form I-864 is as complicated as it is crucial. With few exceptions (the biggest being serious medical conditions), a valid Form I-864 is virtually always sufficient to avoid inadmissibility on public charge grounds.

The legacy Immigration and Naturalization Service (INS) published guidance on public charge determination in 1999 that’s still in effect. According to their definition, an applicant “likely to become a public charge” is one who is “‘primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”

4 programs are considered for public charge purposes:

• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF)
• State general assistance programs
• Programs, including Medicaid, when used for long-term institutionalization for healthcare 

The new Public Charge Rule aims to shift focus away from the U.S. petitioner and toward the applicant instead. Applicants for adjustment of status who are subject to the public charge ground of inadmissibility must file a new form in addition to the Form I-864. The new I-944, called the Declaration of Self-Sufficiency, is designed to asses an applicant’s ability to become financially self-sufficient. Form I-944 only applies to adjustment applicants, not applicants for admission at a port of entry. 

Several classes of adjustment applicants are exempt from public charge determinations or are eligible for a waiver, including:

• Asylees
• Refugees
• Afghan and Iraqi special visa interpreters
• Amerasian immigrants
• Cuban and Haitian entrants under section 202 of the Immigration Reform and Control Act of 1986
• Applicants under the Haitian Refugee Immigration Fairness Act of 1998
• Applicants under the Nicaraguan Adjustment and Central American Relief Act
• Applicants under the Cuban Adjustment Act
• Applicants for Temporary Protected Status
• Special immigrant juveniles
• Most self-petitioners under the Violence Against Women Act
• T-Visa Applicants and T Nonimmigrants Applying to Adjust Status
• U Visa Petitioners and U Nonimmigrants Applying to Adjust Status

The Public Charge Rule applies not just to adjustment applicants, but also to those looking for an extension or change of nonimmigrant status. The difference is that the standard applied to nonimmigrants is retrospective rather than prospective. Rather than guessing whether the applicant may need public benefits in the future, DHS will examine only whether the applicant received 12 months or more of public benefits during any 36-month period while in the nonimmigrant status he or she wishes to change or extend. Nonimmigrants are also not required to file Form I-944. 

New Test and Definition for “Public Charge” 

The new definition of “public charge” is expressly tied to the receipt of “public benefits.” An immigrant deemed “likely to become a public charge” means they are likely to receive public benefits at any time in the future. The official definition includes: “Public charge means an alien who receives one or more public benefits, as defined in paragraph (b) of this section, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”

The DHS will now look at the “totality of circumstances” to determine whether an applicant is likely to become a public charge. 

The Public Charge Rule lists the following programs as “public benefits:”

• Temporary Assistance for Needy Families (TANF)
• Supplemental Security Income (SSI)
• Supplemental Nutrition Assistance Program (SNAP, i.e., food stamps)
• Medicaid
• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
• Section 8 Housing Assistance under the Housing Choice Voucher Program
• Public Housing under Section 9 of the U.S. Housing Act of 1937
• Any other federal, state or local cash benefit programs (i.e., general assistance)

There are 3 notable exceptions for those who receive public benefits. The first exemption includes specific categories of Medicaid enrollment, such as:

• Benefits received by pregnant women
• Benefits received by individuals under age 21
• School-based services
• Services provided under the Individuals with Disabilities Education Act
• Emergency Medicaid 

The second exemption to the Public Charge Rule is public benefits received by military families. It applies to applicants who were in the service “at the time of filing or adjudication” of their immigration application or at the time they received the benefits. This exemption applies both to service members and to applicants who are the spouse or child of a service member.

The third exemption is for child applicants who will automatically acquire citizenship – minor LPR children with one U.S. citizen parent who resides in the United States with that parent. 

New Totality of Circumstances Test

These 7 factors are taken into consideration with the new totality of circumstances test:

• Age. Ages 18 to “early retirement age” are preferred.
• Health. Medical conditions that may impact an applicant’s ability to work, attend school, or care for themselves are negative. 
• “Family status.” Larger families are seen as being more likely to become public charges in the future. 
• Assets, resources, and financial status. The applicant’s household income should be at/above 125% of FPG (100% for aliens in the military), and they should have enough assets or resources to cover reasonably foreseeable medical costs. Negatives would be financial liabilities or applying for or receiving public benefits after October 15, 2019. 
• Education and skills. The applicant should have the education and skills to obtain employment with an income sufficient to avoid becoming a public charge. 
• Prospective immigration status and expected period of admission. These factors affect an applicant’s ability to support themselves. 
• Affidavit of support. Does the applicant have a filed and sufficient Form I-864? 

“Heavily Weighted” Factors 

These 4 circumstances are considered heavily weighted negative factors:

• The applicant is not a full-time student and is authorized to work, but can’t demonstrate current employment, recent employment history, or a reasonable prospect of future employment.
• The applicant has received or has been approved to receive one or more public benefits for more than 12 months within a 36-month period (where two benefits count as two months) starting less than 36 months prior to the alien’s application for admission or adjustment of status on or after October 15, 2019.
• Being diagnosed with a medical condition that will likely require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide for himself or herself, attend school, or work, as well as being uninsured with no prospect of getting health insurance and way to pay for foreseeable medical costs. 
• Being previously found deportable or inadmissible on public charge grounds by an Immigration Judge or the Board of Immigration Appeals.

Meanwhile, these 3 things are heavily weighted positive factors that show an applicant is unlikely to become a public charge:

• The applicant has household income, assets, resources, and support of at least 250% of FPG.
• The applicant is authorized to work and currently employed at or above 250% of FPG for their household size. 
• The applicant has “appropriate” private health insurance without subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act.

Should you have any questions or if you would like to schedule a consultation, please contact me by submitting the form or by calling me at (248) 630-3239.  I accept clients from across the U.S. and around the world.  My law office is conveniently located in Troy, Michigan for in-person meetings.  For phone consultation, you can reach me from any part of the United States or abroad.