The government can continue applying the new public charge rule as before
Similar to what the election results have been for both the candidates and their voters, the last few days have also been a rollercoaster ride for foreign nationals and their employers. It all started with a federal District Court vacating the DHS’s public charge rule and ended in an appeals court staying the lower court’s decision of vacation.
The Decision and The Stay
On November 2, hearing the Case: 1:19-cv-06334 in the District Court, Cook County, Chicago, Illinois, the federal judge, Judge Gary Feinermanin, said that the new public charge rules must be vacated because they go against the Administrative Procedure Act (APA).
The Plaintiffs, the Cook County and the Illinois Coalition for Immigration and Refugee Rights (ICIRR), wanted the vacation of the Final Rule. The defendants, Chad Wolf, the DHS, Kenneth Cuccinelli, and the USCIS, wanted the vacation to be limited to Illinois.
In October last year, the court stopped DHS from enforcing the public charge law in the State because the rule likely violated the APA. After DHS appealed the decision, the 7th Circuit Appeals Court denied the appeal to stay the injunction.
Besides the public charge rule charge, the Court also granted the Plaintiff’s claim that “the Rule violates the equal protection component of the Fifth Amendment’s Due Process Clause.” The equal protection part relates to the notion that “the Rule is motivated by the impermissible discriminatory purpose of favoring white immigrants over nonwhite immigrants.”
ICIRR CEO lauded the ruling, stating: “This is a major victory for immigrants across Illinois and throughout the nation and underscores the importance of protections for all.” The ICIRR was also grateful that they can continue litigating “the Equal Protection Clause claim against the federal government, and root out the discriminatory animus towards non-white immigrants inherent in this rule.”
In response to the decision, the DHS quickly launched an appeal to halt the decision pending appeal. On November 3, the U.S. Seventh Circuit Court of Appeals gave an administrative stay. The legality of the public charge rule is being challenged in various jurisdictions.
Previous Challenges to The Legality of The Public Charge Law
The Cook County and the ICIRR initially challenged the legality of the public charge rule in September last year. The challenge was upheld in court with blocking of the rule in the State. The Supreme Court granted the public charge rule on a 5-4 vote in January after it was denied in several rulings.
Public charge lawsuit filings have continued in the second half of the year as well. In July, a New York federal court stopped DHS from enforcing the rule during the COVID-19 emergency. This ruling was shortly followed by a Second Circuit ruling limiting the injunction to the States of Vermont, New York, and Connecticut.
The DHS sought a stay on the limited injunction as well. In September 2020, a Second Circuit court ruled In favor of the DHS, stating that the federal court did not have the authority to prohibit the department from requiring applicants to comply with the public charge rule.
“We will apply the public charge final rule and related guidance in the USCIS Policy Manual, Volumes 2, 8 and 12, to all applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020” (USCIS)
Implications for The Affected Parties
Of course, the most affected party in this legal back and forth are the applicants looking for an extension or adjustment of their status. What the November 2 decision meant for employers and foreign nationals is that they don’t have to worry about the new green card rules standing in their way.
The expectation after the ruling was that the USCIS will acknowledge the decision and act accordingly. The 7th Circuit court decision of course changes all that: It means a return of the same procedure for the applicants. The public charge forms and documents required before the ruling are required again.
Perhaps the most notable side effect of this legal battle has been on the health of the immigrants. According to the Commonwealth Fund, before the final rule, Medicaid was considered as evidence of public charge status when it was used for long-term care. Unfortunately, after the final rule, any type of nonemergency Medicaid use by most public charge-restricted immigrants can affect their ability to become a citizen.
The public charge rule seems to be part of the regulatory wall the Trump administration has constructed against immigrants. The constant rejection and reinstatement of the final rule have created a culture of uncertainty for immigrants and their employers. Unfortunately, with more appeals against the rule, this environment of constant confusion and hardship for immigrants is likely to continue.
Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.”
He is the co-author of the acclaimed book, Immigrant, Inc. —Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek.
Contact your immigration lawyer in Chicago, Illinois should you have any questions and read more information about immigration in Chicago now.
On Feb. 24, 2020, the USCIS added yet another form to the already extensive paperwork you need to adjust your status to lawful permanent resident — Form I-944, Declaration of Self-Sufficiency. The purpose of the form is to prove that you will not become a “public charge” (dependent on public benefits) while in the United States.
Following are some section by section tips on how to complete this form in an effective possible manner.
Part 1: Information About You
Name and address: Give your full legal name, exactly as it appears on your passport. Provide your residential address. The address you provide, here and elsewhere in your application, is where the USCIS will be mailing your green card if your application is successful.
Alien Registration Number: Provide your eight- or nine-digit alien registration number, issued to you by the USCIS, if you have one. If you have never applied for law permanent residence before and have never been in removal proceedings before, you might not have one.
USCIS Online Account Number: You might not have this if you’ve never filed certain types of applications with the USCIS. If you don’t, leave it blank.
Part 2: Family Status
The purpose of this section is to help the officer determine the extent of your financial burdens.
Your household: Provide the requested information about yourself and everyone else in your household. Your household includes:
- You;
- Your spouse, if you live together;
- Your unmarried children under 21 if they live with you;
- Anyone for whom you provide (or are required to provide under court order) at least 50 percent financial support even if you don’t live with them;
- Anyone you claim as a dependent on your federal income tax return;
- Anyone who provides at least 50 percent of your financial support; and
- Anyone who lists you as a dependent on their federal income tax return.
If you are still a child, the foregoing list will be different.
Part 3: Your and Your Household Members’ Assets, Resources, and Financial Status
Income: Provide your household’s total income before taxes.
Tax returns: Declare whether you and your household members filed tax returns. If you didn’t, or if any other income-earning member didn’t, you might be caught in the horns of a dilemma — if you were not required to file a tax return because your income was too low, you might be considered a high risk to become a public charge.
If your income was high enough to require you to file a tax return but you didn’t file one, you broke the law. It would be best to resolve such as situation, even by filing a late return, before you complete Form I-944.
If you underreported your income on your tax return, this could come back to haunt you now. The USCIS will expect your household to have income of at least 125 percent of the federal poverty guidelines, depending on the size of your household and the cost of living in the area where you reside.
Of course, the higher your income, the better your chances of overcoming the public charge barrier.
Amounts earned from illegal activity: Reporting such amounts will never benefit your application.
Receipt of need-based cash benefits: These types of benefits (such as SSI or Temporary Assistance to Needy Families) count as public benefits. They will not help your case, although a modest amount of public benefits will not automatically disqualify you. If you have received such benefits, however, you have to list them.
Other income: List any income that does not appear in your tax return — child support payments, for example.
Assets: List the entire assets of your household including items such as a family home, a 401(k) account, a car, etc. Don’t miss anything, because the more you report, the better your chances of overcoming the public charge barrier will be.
To the extent that you can, provide an objective valuation of these assets — a real estate appraisal, for example. Add as much documentation as you can.
Debts: You will need to list all of your debts including mortgages, credit card debts, etc., with as much documentation as you can provide. The USCIS will subtract your debts from your assets and income to determine your financial viability.
Credit rating: You will need to provide your credit score and information about any previous bankruptcies. You will also need to provide your credit report. If you have the time, you might consider taking some time to clean up your credit report before you file Form I-944.
Health insurance: You are going to need some form of health insurance before you file Form I-944, together with documentary evidence of it; otherwise you will be at a great disadvantage.
If you are employed, your employer may be providing you with health insurance. The use of most forms of Medicaid will be held against you.
Questions 19-21 are designed to determine whether you are exempt from the public charge rule. If you are, you don’t need to worry about overcoming the public charge barrier.
Whether you have applied for public benefits: Applying for public benefits can be held against you, even if you were turned down.
Requesting a fee waiver on a previous immigration application can be held against you.
Part 4: Your Education and Skills
Answer yes to Question 1 only if your immigration is based on employment (you cannot answer “yes” if your immigration is based on family relationship, for example).
Educational attainment and occupational skills: Don’t forget anything, including professional certifications, because proving your employability can go a long way in helping you overcome the public charge barrier.
Part 5. Declarant’s Statement, Contact Information, Declaration, and Signature
You must swear that the information you provided in Form I-944 is true to the best of your knowledge and belief. Once you sign here, deliberately providing false or misleading information is a crime.
Part 8. Signature at Interview
Don’t sign this until your USCIS interview.
On Feb. 24, 2020, Form DS-5540, Public Charge Questionnaire, became a requirement for most people seeking US permanent residence visas from a US embassy or consulate abroad. The purpose of this form is to allow the examining officer to determine whether it is likely that you will become a “public charge” after you arrive in the United States.
Since you will be classified as a public charge if the officer considers it likely that you will substantially rely on public benefits while in the US, and since being classified as a public charge will render you inadmissible (your visa application will be denied), it is critical that you complete Form 5540 in a careful manner — do not take it lightly. Following is a set of section by section instructions that you can refer to.
Part 1: Information About You
Your name: Provide your name exactly as it appears on your passport. If your name is different than it appears in any documents you submit, you will need to provide a documented explanation (a marriage certificate if you changed your name due to marriage, for example).
Your age: Keep in mind that the US uses the cardinal number counting system, while some countries, such as China, use the ordinal system. In China, for example, your age is one on the day you are born, while in the US you don’t turn one until a year later. Determine your age assuming that your age was zero on the day you were born, and count up from there.
Whether you have ever been in the United States before: This is a yes or no question with no commentary required.
Part 2: Your Health
Health insurance: The officer will be wanting to know whether you are likely to burden the US healthcare system while you are in the US. If you don’t already have health insurance, make sure to answer “yes” to Question 4A concerning your intention to obtain health insurance coverage within 30 days after arriving in the US.
If possible, make definite arrangements before your interview to be covered within 30 days of your arrival, since you may be asked to provide proof at your interview. Failing to arrange for health insurance could jeopardize your application, especially if you have few financial resources.
Part 3: Your Household Size
This part is designed, at least in part, to assess your financial burdens arising from any dependents you are obligated to support. Your “household” includes everyone who lives with you, plus anyone who is financially dependent on you regardless of whether they live with you.
If you have a household member who received public benefits while on active duty in the military, be sure to mention your household member’s military status, because you will have to mention this person’s receipt of public benefits anyway, and their military status could prevent his or her receipt of public benefits from being held against you.
Part 4: Your Assets, Resources and Financial Status
This is one of the most important parts of the form, because insufficient financial resources could result in you being classified as a public charge.
US Federal Tax Returns: You could have a problem if you failed to file a US federal tax return during the last three years when required by law to do so. Consult the IRS website to determine whether you were required to file a federal tax return. Remember, it is better to file a late tax return before completing Form DS-5540 than to answer “no” to the question of whether you filed a federal tax return during a year in which you were required to do so.
Income: Be sure to rely on the official exchange rate to answer Question 8, if you received income in a currency other than US dollars.
Assets: Be sure to list all of your assets — savings account, property such as real estate or jewelry, etc. The greater your assets, the smaller the chance that you will be classified as a public charge. High assets can also compensate for low income, at least to an extent. Be sure to value your assets reasonably.
Debts and liabilities: Your debts will be set off against your assets to determine your financial status. Be sure to include all of your debts — you will be required to submit a credit report with your application.
Public benefits: The use of public benefits, such as food stamps, by you or your household can be held against you unless an exemption applies — even if you applied for but were turned down for these benefits. See the USCIS website for an explanation of which benefits will not be held against you. Beware — your entire application could be jeopardized if you don’t answer “no” to Question 13.
Part 5: Education and Skills
This section is designed to assess your employability in the United States. It matters most if you are immigrating through a relative and have no employment or employment offer in the United States. Be sure not to omit anything that could help you.
Part 6: Translator
Enter information about anyone upon whose English language skills you relied to complete this application.
Part 7: Preparer
Enter information about anyone who helped you prepare the form — your lawyer, for example.
Part 8: Additional Information
Use this section to provide any additional information that might help your application.
Part 9: Declarant’s Signature
Since you are the declarant, you must sign this form Your signature guarantees that the information you provided is true to the best of your knowledge and belief. It is a crime under US law to intentionally provide any false or misleading information on Form DS-5540.
Contents
- Introduction
- Who Does Public Charge Apply to? Are There Any Exceptions?
- How the Public Charge Rule Has Changed
- A Bit of Perspective
Introduction
The US has a long-standing policy that requires prospective immigrants to prove that they will not become a “public charge” in order to become lawful permanent residents. But what is considered a public charge?
You are a public charge if you rely on public benefits. This rule applies both to people seeking visas from overseas through consular processing, and to people seeking adjustment of status through the Department of Homeland Security.
As of January 3, 2018, however, the State Department tightened their public charge rules in a manner that complicates the immigration process for those who apply for a green card outside the United States. Visa denials based on public charge status have skyrocketed since then. The Department of Homeland Security has followed suit, by tightening the rules for people applying for adjustment of status within the US.
Who Does Public Charge Apply to? Are There Any Exceptions?
Not everyone seeking to become a lawful permanent resident of the United States is required to prove that he/she is not likely to become a public charge — certain immigration statuses are exempt from the public charge rule for humanitarian reasons, for example.
Following is a partial list of people who do not have to prove that they will not become a public charge while in the United States in order to become a lawful permanent resident. Some categories, such as asylum seekers, have been exempted from the list below because their applications must be submitted to the USCIS, not a US embassy or consulate.
- Refugees;
- T visa applicants (for victims of human trafficking);
- U visa holder (for crime victims);
- Individuals applying for Special Immigrant Juvenile Status (for juvenile victims of abuse and neglect);
- S visa holders (for witnesses and informers) who are seeking adjustment of status;
- Special immigrants, such as Iraqi citizens who served as translators for US troops;
- Certain Amerasian immigrants; and
- People seeking permanent resident status under the Haitian Refugee Immigration Fairness Act (HRIFA).
How the Public Charge Rule Has Changed
Strictly speaking it is Congress, not the executive branch, that is responsible for creating and modifying US immigration law, including the public charge rule. Nevertheless, Congress frequently delegates legal immigration definitions to the executive branch by writing vague laws and then allowing the executive branch to supplement these laws with more detailed standards.
How has the Definition of the Term “Public Charge” Changed?
Congress authorized US immigration authorities to deny a visa to anyone who is likely to violate the public charge rule. Since Congress did not clearly define the term “public charge” as it is used in US immigration law, the State Department can define it in a way that creates a substantive change in the public charge rule. On January 3, 2018, the State Department changed the public charge rule, through modifications to the Foreign Affairs Manual.
Prior to January 3, 2018, all you needed to avoid a public charge determination in most cases was an Affidavit of Support from a qualified sponsor. Now the public charge rules are more stringent.
Non-Cash Public Benefits
If you are living outside the United States and applying for an immigration visa through consular processing, you are almost certainly not eligible for US public benefits anyway. Nevertheless, the public charge determination has always been forward-looking — your failure to use US public benefits in the past will not necessarily prevent the public charge rule from being used against you, based on the likelihood of you using them in the future.
Unfortunately, the term “public benefits” has been redefined in a manner that could be disadvantageous to you. The previous public charge guidelines focused on the applicant’s likely use of “cash benefits” such as Temporary Assistance to Needy Families (TANF, colloquially known as “welfare”). Back then, the likely use of non-cash benefits was not considered in a public charge determination.
Now, the public charge rule has been modified to include the possible future use of many non-cash public benefits against an applicant. Is Medicaid a public charge now, for example? Following is an abbreviated list of non-cash benefits:
- SNAP benefits (“food stamps”);
- Section 8 housing assistance;
- Section 8 rental assistance;
- Federal housing subsidies; and
- Many (but not all) Medicaid benefits. There are exceptions for emergency medical treatment, people under 21 at the time of use, disabled people, pregnant women, and new mothers who use Medicaid within 60 days of giving birth. These exceptions were made for humanitarian reasons
Not all benefits will be held against you — the receipt of unemployment benefits, for example, will not be held against you. Just because the likely use of any of the foregoing benefits can be used against you by United States immigration authorities does not mean that you are ineligible to receive them.
In other words, the fact that a green card holder can legally use some of the foregoing benefits is no defense against a public charge rejection of your lawful permanent resident application.
If you have been in the United States before and have used public benefits, this history can be used against you by State Department immigration authorities. Fortunately, however, rejection of your application is not necessarily inevitable simply because you used public benefits — ultimately, it is a subjective determination.
The “12 Months in a 36-month Period” Rule
Previously, the public charge rule required the examining officer to determine that you are likely to become “primarily dependent” on public benefits in the future in order to disqualify your application under the “public charge” rule. You had a good chance of clearing the public charge barrier if, by the time of your application, you had never been primarily dependent on public benefits in the United States.
Now, the State Department has instituted the “12 months in a 36-month period” rule to make this determination. Under this rule you can be disqualified as a public charge if you are judged to be likely to use more than 12 months of public benefits during any 36-month period in the future.
If you are judged to be likely to use one public benefit for 13 months during any 36-month period in the future, for example, your application will be denied. Likewise, your application will be denied if you are judged likely to use two public benefits for seven months during any 36-month period in the future (because two benefits times seven months equals a total of 14 months of use of public benefits).
Will the “12 month in a 36-month period” rule apply to me even after I obtain US citizenship?
If you are just now applying for immigration to the United States, you lack the privileges granted to US citizens or green card holders, and you can be denied entry to the US on the basis that you might become a public charge, even if the officer determines that you will not become a public charge until after you obtain US citizenship.
Once you obtain US citizenship, however, you are safe — will not be subject to the public charge rule even if you do end up using public benefits. Likewise, only under rare circumstances can the public charge rule be used against you once you obtain your green card.
What is the “Totality of the Circumstances” Test?
Under the new definition of public charge, your green card application can be denied if the officer decides, based on the “totality of the circumstances” that you are likely to become a public charge in the future. The vagueness of the term “totality of the circumstances” means that the officer can take into account any fact he believes is relevant, including the details of your personal finances.
The totality of the circumstances test has been widely criticized by immigration lawyers because it appears to give the examining officer nearly unlimited discretion, turning the adjudication of a permanent resident application from a fact-based determination to an opinion-based determination. It is for this reason that the services of a skilled and persuasive immigration lawyer is even more important than it used to be.
Following are some of the factors taken into consideration in the “totality of the circumstances” test.
The Use of Public Benefits by Family Members
The past or current use of public benefits by members of your household can also be held against you on public charge grounds. This applies, at least in theory, even if you have US citizen children who use public benefits (in this case your children’s use of public benefits can be held against you, but not directly against them).
Affidavits of Support
Previously, in most cases all you needed to overcome the public charge barrier was a Form I-864, Affidavit of Support filed on your behalf by a qualified sponsor. Now, however, that may not be enough — an I-864 sponsor is merely considered a positive factor that can be outweighed by other negative factors.
Even I-864 sponsors themselves are now subject to additional scrutiny. The officer may consider the credibility of the sponsor and the likelihood that he will abandon you without sponsorship. The sponsor’s own finances might be scrutinized more carefully, and the past or current use of public benefits by your sponsoring relative or his/her household members can be held against you.
Your Age
Your age can now be taken into consideration when making the public charge determination. If you are approaching retirement age, for example, the officer may consider your job prospects and how much income you will lose after retirement. Your age is more likely to be held against you if you are under 18 or over 61.
Health Problems
Your application can be refused if you have health problems that may prevent you from working, burden you with high medical bills or tempt you to seek Medicaid assistance, You can mitigate the negative effect of this factor by purchasing health insurance and submitting documentary evidence that you maintain effective health insurance.
Employability and Employment Status
Your ability to obtain employment in the United States will be taken into consideration. Of course, this will not matter so much if you are coming to the US on an employment visa, unless your salary is low enough and your household size is large enough that questions can be raised about your economic viability. The more impressive your resume, the more likely it is that your visa will be approved.
Prior Visa Denials on Public Charge Grounds
The past matters. If you have ever been denied entry to the United States on public charge grounds, it will be more difficult to overcome the public charge barrier a second time. Furthermore, every additional time you are denied entry on public charge grounds will decrease your chances the next time you apply.
Our Factors
Other factors, such as your English language ability, may be taken into consideration as well.
What is Form DS-5540?
Form DS-5540, Public Charge Questionnaire, is a new document, required as of Feb. 24, 2020, that you must file with the embassy or consulate together with your application package. The difference between Form DS-5540 and Form I-864 submitted by your sponsor is that Form I-864 probes your sponsor’s financial resources, while Form DS-5540 probes your own financial resources. At this time there is no fee to file Form DS-5540 itself.
The DS-5540 requirement applies to applicants whose interviews are scheduled on or after Feb. 24, 2020. Applicants whose interviews were scheduled before Feb. 24, 2020 did not need to file Form DS-5540. You will also be excused from filing Form DA-5540 if you are not subject to the public charge test (see above).
Who needs to file Form DS-5540?
People applying for adjustment of status in the US do not need to file Form DS-540; instead they must file Form I-944. The only people who do not need to fill out Form DS-5540 are (i) people whose interviews were scheduled before Feb. 24, 2020, (ii) people who are not subject to the public charge barrier, such as refugees and (iii) people living in the US who are applying for adjustment of status with the Department of Homeland Security.
Filling Out Form DS-5540
Since the public charge determination is based on the “totality of the circumstances” of your application, it is not limited to factors that relate directly to your finances, such as your bank account balance. Your health, for example, is indirectly related to your finances. It is important that you provide as much information as possible, especially information that could help your chances. A skilled immigrant lawyer can help you with this.
Form DS-5540 is only four pages long (much shorter than the Form I-944 that is filed by US-based permanent resident seekers), but it is quite intrusive. You will need to provide information such as:
- Your name and age;
- Whether you have ever visited the US before; on what dates);
- Whether you have health insurance;
- Who the members of your household will be once you arrive in the US;
- Your US tax returns for the past three years, if you were required to file.
- Your annual salary;
- Any income you will continue to receive after you arrive in the US;
- Whether you have a job waiting for you in the US;
- The amount of your assets and liabilities;
- Any US public benefits you received on or after Feb. 24, 2020;
- Your education (where you went to school, etc.);
- Any occupational skills and certifications (ability to speak a foreign language, for example, or a professional license); and
- Information about anyone who helps you fill out the form, such as your lawyer;
What supporting documents are needed for Form DS-5540?
You will need to prove just about everything that you assert on Form DS-5540 with documentary evidence. It is critical that you provide complete documentation. Some of the documents you are likely to need include:
- Proof of current or future US health insurance;
- IRS tax return transcripts for at least the past three years, if you were required to file;
- Proof of income;;
- Verification of current employment or employment offer;
- Proof of additional income (dividends, pensions, etc.);
- Proof of assets (title to a home, for example);
- Proof of debts and liabilities (a mortgage, for example);
- Proof of education;
- Any occupational certifications and licenses that you possess; and
- Certified English translations of any documents that were not issued in English.
Submitting a Bond
One of the few bright spots concerning the new public charge rule is that as of Feb. 24, 2020,applicants filing from abroad at a US embassy or consulate may be able to submit a cash bond as a way of overcoming the public charge barrier, even though they otherwise wouldn’t qualify for immigration. Although the minimum bond is $8,100 (adjusted annually for inflation), it could be set a lot higher.
How Does the Approval Process work?
Approval of a US immigration visa application is a multi-step process. Following is a general rundown of what to expect:
- You will need to submit your initial application package, including all supporting documentation, to the USCIS under the Department of Homeland Security for approval. The forms vary depending on what type of visa you are applying for.
- You will (hopefully) receive an approval notice in the mail from the USCIS.
- Depending on your type of visa, you may need to wait for your visa application to become current. In some cases this takes years.
- The National Visa Center will send you a letter telling you what fees you have to pay and how you must pay them.
- You must submit Form DS-260 and supporting documentation.
- The National Visa Center will forward your application to the nearest embassy or consulate.
- The nearest embassy or consulate will schedule an interview for you.
- Before the interview, you will need to undergo a medical exam, complete some forms (including DS-5540), assemble some supporting documentation. The doctor who administers your medical exam will give you a sealed envelope with your exam results to bring to the embassy or consulate. Do not break the seal.
- Bring all supporting documents to the interview, including Form DS-5540, along with your passport and anything else you are asked to provide. You may also be required to undergo biometrics (fingerprinting, etc.), either on the date of your interview or at some other time.
- A decision on your application should be made within about a week of your interview — in fact, the decision could be made on the spot. Either way, you will need to have your visa stamped onto your passport before you will be allowed to enter the United States.
Note: You may be given documents inside a sealed envelope that you need to present to immigration officials upon your arrival in the United States. If so, do not break the seal.
A Bit of Perspective
All told, the process for obtaining an immigration visa from a US embassy or consulate overseas is quicker and easier than seeking to adjust your status within the United States. The future of the public charge rule itself is highly controversial, and it could change quickly in response to political developments
Contents
- Introduction
- Legal Wrangling
- How does the Final Rule change the way that the “public charge” determination is made?
- Who does “public charge” apply to?
- Is Medicaid a public charge?
- Is unemployment benefit a public charge?
- What other public benefits can be held against me?
- Which benefits are OK to use?
- What is Form I-944?
- Who Needs to File Form I-944?
- How long does it take to complete Form I-944?
- What Information Will I Need to Complete Form I-944?
- What supporting documentation will I need for Form I-944?
- What Happens After I File Form I-944?
- Where Should I Mail Form I-944?
- How Long Does It Take the USCIS to Process Form I-944?
- What is the Filing Fee for Form I-944?
- If You are a Nonimmigrant Seeking a Change of Status (COS) or an Extension of Stay (EOS)
- A Look at the Future
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.
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.
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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.