On February 22, 2020, the United States Citizenship and Immigration Services (“USCIS”) confirmed that it will implement the new “Inadmissibility on Public Charge Grounds” final rule on Monday, February 24, 2020. The new Public Charge rule will apply only to applications and petitions postmarked (or submitted electronically) to USCIS on or after February 24, 2020. Below, we will address some of the most common questions and concerns regarding the new Public Charge rule that we have recently received.
Who needs to be concerned about being a “Public Charge” under the new rule?
ANSWER: For those in the United States, the “public charge” ground of inadmissibility applies to Green Card applicants in the United States and Immigrant Visa applicants overseas; Certain non-immigrant visa holders (students, tourists, temporary workers) who wish to extend or change their non-immigrant status in the U.S.
The Public Charge ground of inadmissibility also applies to individuals apply for an immigrant or nonimmigrant visas to the United States at a U.S. embassy or consulate overseas.
The “public charge” ground of inadmissibility does NOT apply to U.S. Citizens; Green Card Holders/U.S. Lawful Permanent Residents (unless seeking admission to the U.S. after a trip overseas of more than 6 months or after certain criminal convictions); and Specific Exempt Statuses including Refugees; Asylees; Special Immigrant Juveniles; Applicants for Temporary Protected Status (TPS); U-Visa holders and U-visa applicants (victims of crime); T-Visa holders and T –Visa applicants (victims of trafficking); and most self-petitioner under the Violence Against Women Act (VAWA).
How is the new Public Charge rule different from the previous Public Charge rule?
ANSWER: Prior to the new Public Charge rule, USCIS defined an individual who is “likely to become a public charge” as someone who is “‘primarily dependent on the government” due to (1) receiving public cash assistance for income maintenance or (2) institutionalization for long-term care paid for by the government. Also, prior to the new Public Charge rule, only four specific programs were counted as the type of cash benefit programs that would be considered for public charge purposes: Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF); state general assistance programs; and programs (including Medicaid) for long-term institutionalization for healthcare.
The new Public Charge rule changes the definition of someone who is “likely to become a public charge” to someone who receives one or more specific benefits for more than 12 months out of a 36 month period.
The new Public Charge rule expands the number of programs that are considered “public benefits”: Federally-funded, Non-Emergency Medicaid; Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF); Any other federal, state or local cash benefit programs (i.e., welfare); Supplemental Nutrition Assistance Program (SNAP, i.e., food stamps); and Federally funded housing assistance (Section 8, Section 9)
Significantly, the new Public Charge also introduces a “totality of the circumstances” test involving multiple factors to determine whether someone is likely to become a public charge in the future (discussed in more detail below). The “totality of circumstances” test is extremely important when considering that most green card or immigrant visa applicants are unlikely to be eligible to apply for the “public charge” benefit programs listed above.
What Public Benefits are NOT considered under the new Public Charge rule?
ANSWER: Public benefits that are not considered under the new Public Charge rule include (but are not limited to): Emergency medical assistance (including Emergency Medicaid); Children’s Health Insurance Program (CHIP); Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Medicaid for children under 21; Medicaid for pregnant women (and 60 days after giving birth); Medicaid under the Individuals with Disabilities Education Act (IDEA); State-funded Medicaid; Medicare Part D Low-Income Subsidy; Subsidized health insurance under the Affordable Care Act/Obamacare (including the Essential Plan); School lunch/breakfast and other school programs
For inquiries on whether a specific benefit is considered under the new Public Charge rule, speak to your benefits provider or a qualified immigration attorney.
Is the new Public Charge rule retroactive?
ANSWER: No, the new Public Charge rule is not retroactive. The new Public Charge rule applies to public benefits received on or after February 24, 2020 (unless such benefits were already covered by the prior Public Charge rule) and applies only to applications submitted to USCIS on or after February 24, 2020.
If I have not used any of the listed public benefits under the new Public Charge rule, am I guaranteed not to be a public charge?
ANSWER: Not necessarily. As noted above, the new Public Charge rule introduces a “totality of the circumstances” test where the U.S. immigration officer will evaluate multiple factors to determine whether someone is a public charge; the use of any of the listed public benefits is just one element out of many that the officer will consider. Therefore, someone could be deemed a “public charge” even if they have never received any public benefits.
The “totality of the circumstances” factors that the immigration officer will consider include the following:
Age – The immigration officer will examine whether the applicant is at an employable age. Being between 18 and 61 years old is a positive factor, but being under 18 or over 61 years old is a negative factor.
Health – A major health problem is a negative factor. The immigration officer will determine whether the applicant has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will prevent their ability to work, go to school or support themselves. For Green Card applicants, it is important to review a copy of the civil surgeon’s Form I-693 medical report to determine if there is a problematic health condition that needs to be addressed.
Family Status – Generally, USCIS will view a smaller household size positively and a larger household size negatively.
Income, Resources, and Financial Status – A total household income that is at or above 250% of the federal poverty guidelines is a “heavily weighted” positive factor. Likewise, if an applicant has employment authorization and earns an income at or above 250% of the federal poverty guidelines, that is also a “heavily weighted” positive factor. A total household income that is at or above 125% of the federal poverty guidelines is simply a positive factor. However, a total household income that is below 125% of the federal poverty guidelines is a negative factor. Significantly, USCIS now requires the submission of additional forms of documentation there were previously not required: IRS tax transcripts; evidence of debts and liabilities (a credit score report, mortgage statements); and evidence of assets and resources (e.g., bank account statements).
Educational and Skills – The USCIS officer will determine whether an applicant has adequate education and skills to maintain lawful employment. This includes whether the applicant has a high school diploma or GED or is currently enrolled in school; whether the applicant has English language proficiency; whether the applicant has specific skills that are conducive to employment; and whether the applicant is the primary caregiver of a household member. If the applicant has employment authorization but is not a full-time student and cannot demonstrate current or recent employment or reasonable future employment, that is a “heavily weighted” negative factor.
Public Benefits: As noted above, USCIS will consider an applicant’s use of or application for public benefits, but (1) when and (2) what type of benefits were received is very important. Applying for or receiving any of the four public benefits from the previous Public Charge rule before February 24, 2020, is a negative factor. Furthermore, receiving or applying for any of the “public charge” benefit programs under the prior and new Public Charge rule for more than 12 months in a 36-month period starting on February 24, 2020, is a “heavily weighted” negative factor. Benefits received by family members are not counted, only those received by the applicant are considered.
Health Insurance – USCIS considers enrollment in employer-sponsored health insurance, private health insurance, insurance purchased through the Affordable Care Act (Obamacare) that is not subsidized, and Medicare to all be a “heavily weighted” positive factor. Enrollment in other health insurance (excluding Medicaid, unless if under 21 or pregnant) is a positive factor. However, the lack of health insurance is a negative factor, and enrollment in Medicaid (unless if under 21 or pregnant) within the last 36 months starting on February 24, 2020, is considered a “heavily weighted” negative factor. If an applicant has a medical condition that is noted on the civil surgeon’s medical report (Form I-693), then the applicant should provide evidence of sufficient household income, resources, or assets to pay for the reasonably foreseeable medical costs.
Please note that because the above list is merely a summary and is not comprehensive, we recommend speaking to a qualified immigration attorney to discuss the specific Public Charge factors as they apply in your individual case.
I have my Sponsor’s Affidavit of Support and/or a Joint Sponsor, do I still need to worry about the new Public Charge rule?
ANSWER: Yes. Under the new Public Charge Rule, the Affidavit of Support (Form I-864) is just one of the multiple factors to consider under the Public Charge determination. Therefore, even if the Petitioner or Sponsor in a case has provided a Form I-864 Affidavit of Support demonstrating an income of at least 125% of the federal poverty guidelines, the USICS officer will still consider factors including the applicant’s age, health, income, and employment to determine if the applicant is likely to become a public charge. Furthermore, for cases where the applicant requires a Joint Sponsor, USCIS will examine factors like the relationship between the Joint Sponsor and the applicant and whether the Joint Sponsor has previously sponsored other immigrants to determine the likelihood that the Joint Sponsor will actually provide the applicant the required amount of support.
I don’t receive public benefits, but my U.S. citizen or U.S. lawful permanent resident children or family members do. Do I still need to worry about the new Public Charge rule?
ANSWER: Yes. As noted above, public benefits under the new Public Charge rule are not considered for U.S. citizens or green card holders, and Medicaid benefits received by those under 21 years of age are not considered for Public Charge purposes. However, because the “totality of circumstances” test examines factors including the applicant’s household size and total household income, an applicant’s specific family circumstances (for example, a large household size and total household income less than 125% of the federal poverty guidelines) could be problematic under the new test especially if the negative factors outweigh the positive factors.
How exactly is the green card process or immigrant visa process different under the new Public Charge rule?
ANSWER: For adjustment of status (green card applicants) who are not exempt from the Public Charge rule, USCIS now requires the submission of an additional form, Form I-944, Declaration of Self-Sufficiency, with the adjustment of status application. Form I-994 also requires the submission of multiple documents that were previously not required, including an IRS tax transcript for the most recent year and a credit report.
Immigrant visa applicants applying for an immigrant visa at an overseas U.S. embassy are now required to complete and submit Form DS-5540, Public Charge Questionnaire.
I am currently in the United States in a lawful nonimmigrant status (B-1/B-2, F-1, H-1B, etc.). How does the new Public Charge rule affect me?
ANSWER: Beginning on February 24, 2020, those already in the United States in lawful nonimmigrant status such as visitors (B-1/B-2), students (F and J visas), and temporary workers (H-1B, O-1, etc.) are required to disclose if they have received or been certified to receive 12 months or more of public benefits during any 36-month period while in the nonimmigrant status that they wish to change or extend. This means that as long as a nonimmigrant does not receive public benefits during the time they hold that nonimmigrant status, they should not be affected by the new Public Charge rule. Unlike green card applicants, nonimmigrants are not required to file the Form I-944, Declaration of Self-Sufficiency.
I am a U.S. Green Card Holder and I am applying for Naturalization. But I receive or am receiving benefits that are subject to the new Public Charge rule. Do I need to be concerned?
ANSWER: Most likely not. As noted above, the Public Charge ground of inadmissibility does not apply to those who are already U.S. lawful permanent residents, with a limited exception for green card holders who travel outside the U.S. for 6 months or more or after certain criminal convictions. Receiving or having received public benefits that are subject to the new Public Charge rule is not a bar to naturalization. However, naturalizing to a U.S. citizen does have requirements such as having a certain number of years of “good moral character.” This may be a concern for individuals who receive or have received public benefits that are inconsistent with their tax returns, income, or household composition.
What is a Public Charge Bond?
ANSWER: If USCIS determines that an applicant is likely to become a public charge but does not have any other grounds of inadmissibility, USCIS may offer the opportunity to pay a Public Charge bond to overcome the Public Charge ground of inadmissibility. However, USCIS has the discretion to decide whether or not to offer the chance to pay the bond. USCIS has stated its decision regarding whether to permit a Public Charge bond will be based on a “totality of the circumstances” test like the one discussed above. The minimum amount of the public charge bond is $8,100.00, which will be adjusted for inflation.
USCIS and the U.S. Department of State have only begun to apply the highly complex new Public Charge rule. Therefore, please stay posted for additional developments and real-world insights on Public Charge issues as the new rule continues to be implemented.