A new government public charge rule intended to make it difficult or impossible for lower-income immigrants to get green cards is in effect, as of Feb. 24 2020. The rule primarily applies to family-based applicants applying for lawful permanent residence (green cards) while in the U.S. Importantly, the rules do NOT apply to applications submitted previously, and in general public benefits received before Feb. 24 2020 will not be taken into account. The Department of State (DOS) also implemented the new rule on Feb. 24 2020, for foreign nationals applying for immigrant visas (green cards) abroad.
What is the new public charge rule? In simple terms a public charge is a person who financially relies on the government. The Immigration and Nationality Act (INA) section 212(a)(4) says a green card can be denied if the U.S. government determines the individual is “likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.” This is known as the public charge ground of inadmissibility.
Applicants in the U.S. filing for change or extension of status also face new requirements. In addition to the changes for green card applicants, whether applying in the U.S. or abroad, there are also completely new requirements for those applying for a change or extension of nonimmigrant status. This can include visitors applying to change to student status, or students applying for H-1B temporary worker status. Such applicants must demonstrate that since obtaining their current nonimmigrant (temporary) status, and until the date USCIS decides the application, they have not received one or more of the listed public benefits for more than 12 months out of 36, as explained above.
The new DHS regulations radically redefine the meaning of the public charge ground of inadmissibility. Now visas can be denied if the government decides the person is “more likely than not at any time in the future to receive one or more public benefits . . . for more than 12 months within any 36-month period.” If you receive 2 public benefits at the same time, that counts as 2 months. This is much more restrictive than the long-standing current rule.
The public charge rule does NOT apply to everyone. Importantly, the public charge rule does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others, as well as members of the military, and their spouses and children; and some others. Most green card holders will not be subject to the rule after traveling abroad. But lawful permanent residents (LPRs) can be subject to the public charge ground of inadmissibility if they are out of the U.S. for over 6 months at a time, as they will have to “apply for admission” when they return.
New forms. USCIS revised several current forms, and introduced a new Form I-944 Declaration of Self-Sufficiency, which is 18 pages long. This form requires extensive financial information including credit reports, evidence of assets and debts, receipt of public benefits, and much more. Those applying abroad must complete a new Form DS-5540, Public Charge Questionnaire.
Not all benefits are counted against applicants. Non-cash benefits such as Medicaid, SNAP, Section 8 Project Housing and several others are included in the calculation.There is a complete list of relevant benefits on the USCIS page that explains the rule. If the benefit is not on the detailed list, it’s not counted against you.
According to USCIS, the agency will determine if the applicant is “likely at any time to become a public charge.” This means more likely than not at any time in the future to receive one or more of the designated public benefits for more than 12 months, in total, within any 36-month period, such that, for instance, receipt of two benefits in one month counts as two months). The following information appears on the USCIS website.
Under this final rule, inadmissibility based on the public charge ground is determined by looking at the factors set forth in 8 CFR 212.22 and making a determination of the applicant’s likelihood of becoming a public charge at any time in the future based on the totality of the circumstances. This means that the adjudicating officer must weigh both the positive and negative factors when determining whether someone is more likely than not at any time in the future to become a public charge.
When determining whether an applicant is inadmissible on the public charge grounds, a USCIS officer must consider these factors about the applicant (as required by section 212(a)(4) of the INA and this final rule):
- Age;
- Health;
- Family status;
- Assets, resources and financial status;
- Education and skills;
- Prospective immigration status;
- Expected period of admission; and
- The sufficiency of the Form I-864 or Form I-864EZ (when required under section 212(a)(4)(C) or (D) of the INA).
