The USCIS “Public Charge” Barrier: Legal Immigration Just Got Tougher

By Richard Herman

Introduction

The “public charge” determination has long been a part of the legal immigration process — immigrants have been required to prove that they will not become a public charge while in the United States. On Feb. 24, 2020, however, the Department of Homeland Security began enforcing the Final Rule, which adds significant obstacles to people seeking to adjust their status to Lawful Permanent Resident (LPR) and even to obtain certain nonimmigrant benefits.

But what is considered a public charge?

Under the Final Rule, you are a public charge if you rely on need-based public benefits to a certain degree. Subject to certain exceptions, the USCIS will scrutinize your finances to determine whether you are a public charge (applications for nonimmigrant benefits) or are likely to become a public charge in the future (applications for permanent residence). If so, your application will be denied.

The Final Rule is extremely broad, and this breadth gives immigration officers wide discretion to consider a variety of factors in determining whether you will likely become dependent on public benefits in the future.

Application requirements have been supplemented to require a new form, Form I-944, together with extensive supporting documentation. Certain other forms have been modified in light of the Final Rule.

The Final Rule adds significant complexity to the application process. This complexity adds to the time investment required to gain approval, and it is expected to greatly increase rejection rates. Even green card applicants seeking to immigrate based on marriage to a person with US citizenship, once considered a “safe” category, can no longer be assured that their applications will be successful.

Legal Wrangling

The Final Rule was enacted under the authority of the executive branch (the Trump administration), rather than by Congress or the courts. Although Congress holds primary authority over immigration law, it typically writes laws broadly and then allows the executive branch to write regulations that fill in the details. This allows the executive branch broad authority to interpret and even change immigration law.

The changes expressed in the Final Rule were controversial from the beginning. Because of this, its implementation was delayed for several months due to significant pushback from the courts, which have the power to suspend the enforcement of laws that they consider illegal or unconstitutional. Following is a rough timeline of the events surrounding the US government’s internal warfare over the implementation of the Final Rule:

On August 14, 2019, the Department of Homeland Security (DHS) published the Final Rule, which was originally scheduled to take effect on October 15, 2019.
Several federal courts issued injunctions that prevented the Department of Homeland Security from implementing the Final Rule on October 15 as scheduled.
Over the next few months, some of these injunctions were overturned.
The United States Supreme Court overturned the last remaining nationwide injunction in late January 2020. That left only one injunction that applied only to the state of Illinois.
On February 21, 2020 the Illinois injunction was overturned by the Supreme Court.
The Department of Homeland Security began enforcing the Final Rule on Feb. 24, 2020, over four months later than scheduled.

How does the Final Rule change the way that the “public charge” determination is made?

The Final Rule does far more than merely tinkering with the previous system on public charge determinations. Following is a synopsis of the changes:

You must complete a new form, Form I-944, and submit associated documentation (see below).
The definition of “public charge” has been broadened. Previously, a “public charge” was someone who was primarily dependent on public benefits for income support.
Now, a public charge could be anyone who is likely to receive any of many public benefits for more than 12 months during any 36-month period in the future. If you receive two forms of benefits, two strikes are counted against you each month. Although the USCIS is not required to declare you a public charge under these circumstances, it does have that option.
Now, a public charge could be anyone who is likely to receive any of many public benefits for more than 12 months during any 36-month period in the future. If you receive two forms of benefits, two strikes are counted against you each month. Although the USCIS is not required to declare you a public charge under these circumstances, it does have that option.
The list of public benefits that can be held against you in a public charge determination has been expanded. Previously, only “income support” benefits such as cash aid were counted, and most nonimmigrants were prohibited from receiving these benefits anyway .
Now, even using food stamps or some federally-funded Medicaid benefits can now be held against you. Fortunately, benefits received by your family members will not be held against you.
The USCIS can consider other factors such as your age, health, household size, education, employment, financial resources, English proficiency, credit score, medical status and access to private health insurance to determine whether you are likely to become a public charge. The officer will weigh the “totality of the circumstances” to make the determination, which is a very subjective standard.
Certain factors are considered “heavily weighted” in the “totality of the circumstances” determination. The likelihood of receiving more than 12 months of public benefits in a 36-month period is heavily weighted, as is a household income of at least 250 percent of the federal poverty level (in this case, it is a positive weighting). Under this system, a positive factor can offset a negative factor and vice versa.
You might be allowed to post a cash bond to overcome a negative public charge determination. The minimum bond is $8,100.

Who does “public charge” apply to?

The public charge rule applies to:

Anyone seeking adjustment of status to Lawful Permanent Resident of the United States (LPR) on or after Feb. 24, 2020;
Anyone seeking to change their status to a nonimmigrant status (H1-B, L-1, L-2, and H-4, etc.) in the United States on or after Feb. 24, 2020a;
Anyone seeking to extend their nonimmigrant status in the United States on or after Feb. 24. 2020.; and
Certain green card holders who are returning to the United States from abroad.

If you are located in the United States and seek to adjust your status, the USCIS will make the public charge determination. The public charge rule does not apply to permanent residents who are seeking US citizenship.

People who are required to apply abroad

If you are seeking US immigration status at a US embassy or consulate outside the United States (which you must do if you are not in legal status in the US, even if you are physically located in the United States), you will not have to file Form I-944.

Instead, you will need to file Form DS-5540. If you are required to apply abroad, a US consular official will make the public charge determination, not the USCIS.

Exceptions to the public charge rule

The public charge rule does not apply to refugees, asylees, certain T and U visa applicants, certain victims of domestic violence, and certain other classes of people. The main reason why these people are exempt from the public charge rule is that the visa status under which they will enter and/or remain in the US are considered humanitarian in both intent and nature.

Is Medicaid a public charge?

The use of federally-funded Medicaid benefits can be held against you, except for:

Medicaid benefits that are used to pay for for the treatment of a medical emergency;
Medicaid benefits provided in conjunction with the Individuals with Disabilities Education Act;
Medicaid benefits that you received before you turned 21; and
If you are female, Medicaid benefits you received during pregnancy and the first 60 days thereafter.

Hand filling the unemployment benefit application

Is unemployment benefit a public charge?

No. The USCIS will not hold your receipt of unemployment benefits against you when determining whether you are likely to become a public charge while in the United States.

If you are an immigrant who has lost your job in the US or been laid off, can you (or should you) seek state unemployment benefits? Read more about The Coronavirus Recession and Immigrant Eligibility for Unemployment Benefits here.

Are you an unemployed immigrant and still have some unanswered questions?

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What other public benefits can be held against me?

Your receipt of the following public benefits will be taken into consideration when determining whether your application overcomes the public charge barrier:

Supplemental Security Income (SSI);
Temporary Assistance for Needy Families (“welfare”);
State or local cash benefit programs for income assistance, no matter what they are called;
Supplemental Nutrition Assistance Program (SNAP benefits or “food stamps”);
Section 8 Housing Assistance or Project-Based Rental Assistance; and
Public Housing under the Housing Act of 1937.

Which benefits are OK to use?

In addition to the Medicaid exceptions listed above, receipt of the following benefits will not trigger scrutiny under the public charge restriction:

Disaster relief;
Federal school lunch programs;
The Special Supplemental Nutrition Program for Women, Infants, and Children;
The Children’s Health Insurance Program CHIP);
Government-subsidized student loans;
Government-subsidized mortgage loans;
Energy assistance;
The use of free food kitchens;
The use of homeless shelters;
Any benefits under the Head Start program;
Many benefits received by active duty US service members (soldiers);
Benefits provided under the Individuals with Disabilities Education Act;
School-based benefits provided to people under a certain age established by state or local law; and
Any benefits you used before you turned 21.

Keep in mind that the contents of this list could change in the future.

What is Form I-944?

Form I-944 is a new form, required for every change of status applicant from the United States who is subject to the public charge rule, that closely scrutinizes your finances in an attempt to determine whether you are likely to become a public charge in the future. The form is quite intrusive, and complying with its documentary requirements can be quite burdensome.

Who Needs to File Form I-944?

Who needs to file the new Form I-944, Declaration of Self-Sufficiency? Anyone subject to the public charge rule whose application must be submitted to the USCIS rather than a US embassy or consulate outside the United States) is required to file Form I-944. Those who are required to apply abroad must file Form DS-5540 instead, which is a rough equivalent of Form I-944.

How long does it take to complete Form I-944?

The USCIS estimates it will take about 4.5 hours to complete Form I-944, not including the time it takes to assemble the rather extensive supporting documentation that the form requires. Estimates from immigration lawyers range from 4 to 10 hours. The additional time required to assemble the necessary documentation (tax returns, etc.) could add up to as much as 30 to 40 hours, depending on your situation.

What Information Will I Need to Complete Form I-944?

Below is an incomplete list of the types of information that Form I-944 will require you to provide:

Basic identification information — your full name, your street address and your date of birth;
Your Alien Registration Number (if you have one );
Your city and country of birth;
Your citizenship;
The names of the people in your household, and whether you are responsible for providing any of these people with financial support (a spouse or child, for example);
The name of anyone who provides you with at least 50 percent of your financial needs over the most recent tax year;
Your total household income, including the incomes of other members of your household;
A list of your total assets and liabilities;
Your credit score;
Information about any bankruptcies that you may have undergone;
Information about your health insurance policy, if you have one;
Information about any public benefits you have received, including both cash and non-cash benefits;
Information about any immigration fee waivers you have received that were based on financial hardship;
Resume information — your educational and occupation history as well as any occupational skills or abilities in English or other laguages (this is designed to assess your employability);
Whether you are retired;
Information about any pensions or retirement benefits;
If you used an interpreter to fill out Form I-944, information sufficient to identify and qualify the interpreter; and
Any other information that is relevant and that might help strengthen your application.

What supporting documentation will I need for Form I-944?

You will need to back up your statements on Form I-944 with documentary evidence. The general rule is “When in doubt, include it.” Nevertheless, the USCIS may still send you a Request for Evidence requesting documentation you have not yet provided. Although some documents are requested by both Form I-944 and Form I-485, you don’t need to submit duplicates of these documents.

Following is an abbreviated list of some of the documentation you will need to provide:

Your federal tax returns (or tax returns form your home country);
Title deed to your home, if you own a home;
Evidence of your major assets and the value of each one (this could require extensive documentation, and the valuation cannot be arbitrary);
Your credit report;
A copy of your health insurance policy, if you have one;
Official government documents providing information about any public benefits you may have received;
Any educational or occupation qualifications such as professional licenses, school transcripts, etc.;
Anything else requested by the USCIS; and
Certified English language translations of any document that has been prepared in a foreign language.

What Happens After I File Form I-944?

Once you send off your entire application package, including Form I-944 and supporting documents, a USCIS officer will review your entire application.

When determining whether your application has overcome the “public charge” barrier, the officer will apply the “totality of the circumstances” test to make a subjective determination. He will also decide whether you meet all of the other requirements for your application.

Requests for Evidence (RFEs)

If the officer considers your application incomplete, or if he requires clarification, he will send you a Request for Evidence (RFE) demanding certain information and/or documentation from you. It is not at all uncommon to receive an RFE; in fact you may receive more than one. It is important that you respond to any RFE promptly and thoroughly.

If your application is approved, the USCIS will send you Form I-797, Notice of Action, notifying you that your application has been approved. If you are applying for Lawful Permanent Resident status (a “green card”), your green card will be mailed to the residence that the USCIS has on file for you.

Where Should I Mail Form I-944?

You should include Form I-944, along with all supporting documentation, with your general application package. The exact mailing address depends on the basis for your immigration status (married to a US citizen, seeking Lawful Permanent Resident status based on employment, applying for an extension of H-1B status, etc.)

How Long Does It Take the USCIS to Process Form I-944?

It is difficult to say at this point — this form is so new that even the USCIS has provided no estimate on how long processing will take. Since adjustment of status to permanent resident typically takes roughly a year, let’s hope that the processing time for Form I-944 will not exceed a year.

What is the Filing Fee for Form I-944?

Fortunately, there is no filing fee for Form I-944.

If You are a Nonimmigrant Seeking a Change of Status (COS) or an Extension of Stay (EOS)

Under the Final Rule, if you are a nonimmigrant (such as an H-1B visa holder) who seeks either a COS or an EOS, you must show that between that date you obtained your current nonimmigrant status and the date that the officer approves your application, you have not received any of the listed public benefits for longer than the previously described 12 months/36-month threshold.

When you apply for LPR status, the officer will seek to determine whether you are likely to become a public charge in the future.

If you are seeking nonimmigrant benefits, however, the officer will only be interested in what has happened in the past, not what is likely to happen in the future. The USCIS is applying a different, more favorable definition of “public charge” to nonimmigrants based on an entirely different legal justification.

If you became subject to the public charge rule by applying for a nonimmigrant status on or after Feb. 24, 2020, the 12 months/36-month restriction won’t matter for several more months, since the USCIS will consider only benefits that you received since February 24, 2020. If your application was postmarked earlier than that date, your nonimmigrant application will not be subject to the public charge rule at all.

A Look at the Future

The full implications of the changes in the public charge rule are not yet clear., but they are certain to impose burdens on those seeking eventual US citizenship, LPR status or even certain nonimmigrant statuses. It remains uncertain how the USCIS will apply the new public charge standards given its current lack of enforcement history.

It is likely that the USCIS will release clarifying information at some point.

In addition, as time goes by, an enforcement history will be generated that should clarify matters. It may be a while, however, before the smoke clears. Meanwhile, prospective immigrants are likely to hesitate to take advantage of even the public benefits they are entitled to.

The real wild card in the deck is the 2020 elections. How the election comes out could have a profound impact on the future of the new public charge policy.