You must file Form DS-5540, Public Charge Questionnaire with your US immigration visa application, in order to prove that you will not rely on public benefits, such as food stamps, after you enter the United States. Form DS-5540 is required only for those who apply for lawful permanent resident status from outside the US — those who apply for adjustment of status to permanent resident within the United State must file Form I-944 instead.
Form DS-5540 requires you to make many declarations about your personal life and your finances. Making declarations is not enough, however — you must prove your declarations with documentary evidence, and it is usually best to provide too much rather than too little. Following are some of the documents you are likely to need to file with Form DS-5540.
Document Checklist
- Your marriage certificate, if you changed your name due to marriage and your name is listed differently on different documents.
- Proof of current or future health insurance and coverage in the United States (a copy of the policy itself, with your signature and the signature of a company representative, would be best). The policy should list the dates of coverage.
- Proof of your income: Official pay stubs for the past six months can be used to prove your salary, as can a bank statement issued by your bank that shows deposits into your account. Other income such as stock dividends, rental income, pension income, child support, investment income, royalties, etc. can be established with appropriate documentation issued by the source — an official pension statement issued by the payer, a child support order issued by a court, a royalty agreement, etc.
- Proof of your assets and their value. If you own a house, for example, you could submit a copy of the deed, along with a professional appraisal of its value. You should also include documents proving any stock ownership, etc. The contents of your bank account can be established with a 12-month bank statement issued by the bank.
- Your U.S. federal tax returns for the past three years. You can receive an official tax transcript from the IRS upon request.You will also need to include supplementary forms such as W-2, 1099s, etc.
- A verification of employment letter from your current employer, issued on company letterhead and signed by your employer. If you are currently employed. If you are entering the US with a job offer, you can submit your offer letter. If your immigrant visa application is based on employment, you will need to submit this information with other parts of your application anyway — you needn’t prepare two copies.
- Proof of education. You will need a diploma and preferably a transcript as well, for each degree you earned. A transcript showing your grades will be particularly useful if you were a good student.
- Copies of any job certifications and licenses that you possess — an electrician’s license, for example.
- Evidence of your receipt of public benefits. You should receive a notification letter when your application for the benefit is approved, and you can submit this as evidence.
- Military service records issued by the US military, if any member of your household was in active duty military service while receiving US public benefits. These records can help your application.
- Documents proving any other declaration you make, if the nature of the declaration is such that it can be proven with documentary evidence.
You may be requested to provide other documents as well.
Important Notes
Missing documents: If a required document is unavailable in your country, you will need to submit a detailed written explanation why you cannot obtain it when you submit Form DS-5540.Failure to submit a required document could delay your case or even result in rejection of your application.
Certification: If the document you need is issued by a government (such as a marriage certificate, for example), the government will insist on keeping the original document in its own files. Try to obtain a certified copy from the government instead. Submitting a handmade photocopy may or may not be accepted, and this should be avoided if possible due to the ease with which a photocopy can be forged.
Translations: Any document not written in English must be accompanied by a certified translation in which the translator certifies that the translation is accurate and complete to the best of the translator’s knowledge. The translator should be a professional translator working for a recognized translation agency. Failure to submit an appropriate translation could result in your application being treated as if you had not included the document at all.
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.
Contents
- Introduction
- What causes deportation proceedings?
- What is Cancellation of Removal? Am I Eligible?
- Continuous Presence
- Aggravated Felonies & Crimes Involving Moral Turpitude
- Public Charge
- Good Moral Character
- Exceptional and Extremely Unusual Hardship
- Other Forms of Relief
Introduction
The Department of Homeland Security defines deportation as “the formal removal of an alien from the United States when the alien has been found removable for violating the immigration laws.”
In other terms, deportation is when an immigrant inside the US is ordered to be removed by an Immigration Judge for violating the law. The words “deportation” and “removal” have the same meaning within this context and are used interchangeably.
Deportation may be ordered on any non-US citizen, meaning even if you are a green card holder, you are not exempt from being removed from the country by the government. Until an immigrant has been through the entire process of naturalization and has officially become a US citizen is he then barred from being removed to his originating country.
An official order of deportation has a greater legal consequence than being sent back to your home country. Depending on the reasoning behind the order of removal, not only is an immigrant sent out from US territory, but the immigrant must also remain outside of the US for a certain period of time before he is allowed to return. This period could range from five years to ten years, or even amount to an indefinite exile from the country.
Therefore, if you, a friend, or a loved one has been issued an order of removal, it is critical to obtain an experienced immigration lawyer right away. Along with the help of an immigration lawyer, it is important for the immigrant to stay informed and have knowledge of all possible avenues for relief.
What Causes Deportation Proceedings?
There are a variety of reasons why an immigrant may be issued an order of deportation and placed into deportation proceedings in immigration court. In general, the law says immigrants are deportable for violating immigration laws; however, violation of US laws may also put an immigrant at risk.
The Immigration Nationality Act §237 lays out all classes of deportable immigrants. In summary, these classes include:
- Overstay of visa/violation of status
- Smuggling
- Marriage Fraud
- Criminal Offenses
- Drug Offenses
- Firearm Offenses
- Documentation Fraud
- Public Charge
- Security and Related Grounds
While most of these grounds for deportation seem like clear violations of the law, even non-violent acts or common mistakes may easily put an immigrant at risk of removal. For instance, registering and/or voting in US elections is a strict liability offense that will place an immigrant in expedited deportation proceedings.
In recent years, it has become a common phenomenon where voter registration tables are set-up in public places, and sometimes, representatives register people of all backgrounds, regardless of their citizenship status. Many immigrants unfamiliar with the law do not realize that completing voter registration forms will lead to negative consequences.
Another commonplace example is failure to notify the government of an address change. While this lack of action seems mundane, and in fact, many people make the mistake of forgetting to report their address change when moving houses or location, not reporting to USCIS of a change of address will make an immigrant subject to deportation.
Reporting an address change can be done through an online submission, a mail-in form, or a call to USCIS. Note: Changing your address with the US Postal Service will not change your address with USCIS.
What is Cancellation of Removal? Am I Eligible?
Under INA §240A, cancellation of removal is a discretionary form of relief, otherwise known as a waiver of deportability. If an immigrant finds himself/herself in removal proceedings, he/she may file for cancellation of removal if certain requirements are met.
The immigrant may file an application for relief before an Immigration Judge, who then determines whether that person is eligible for-
- Waiving certain charges of immigration violations that initiated the deportation order; and
- Canceling the removal order and, if a non-LPR, adjusting to the status of an immigrant lawfully admitted for permanent residence.
Cancellation of removal is a one-time-only form of relief, and an applicant must provide substantial evidence to prove that he or she meets the following requirements in order to be granted relief. Eligibility differs for green card holders and non-green cardholders.
Immigrants of LPR Status must show
- Green Card was obtained lawfully;
- Continuous residence in the US for 7 years after admission AND lawful permanent resident status for at least 5 years before the “stop-time” rule is initiated (see below);
- No conviction of an aggravated felony;
- No offense triggering criminal inadmissibility/crime of moral turpitude; and
- Have not received relief in the past.
Immigrants of non-LPR Status must show
- Continuous and physical presence in the US for at least 10 years (date of admission to date issued Notice to Appear);
- Good moral character (No convictions of criminal inadmissibility or deportability grounds); and
- Exceptional and extremely unusual hardship to LPR relative (see below).
Continuous Presence
Continuous presence in the US is one of the primary factors when determining whether the applicant may be granted cancellation of removal. For non-green card holders, they must have accrued continuous and physical presence in the country for at least 10 years to be eligible for relief.
Think of this factor as time accrued on a stopwatch. Once an immigrant enters the US, his “timer” begins. That time will continue to accrue, and even brief trips abroad i.e. vacation or business trips will not disrupt the timer for continuous presence (so long as a single departure does not exceed 90 days and there was less than 180 days in total departure over the course of 10 years).
According to INA §240(A)(d), an immigrant’s continuous residence or continuous physical presence ends when: (1) the immigrant has committed an offense that renders him inadmissible to or removable from the US; or (2) in the case of applying for cancellation of removal, when the immigrant is issued a Notice to Appear, whichever is earliest. This is known as the “stop-time” rule.
Recent case law has emphasized specificity in Notices to Appear in order for the timer to be stopped. In Pereira v. Sessions (2018), the US Supreme Court ruled that NTAs must specify the date, time, and location that the hearing will take place.
Otherwise, if an immigrant’s NTA states the date of his hearing is “to be determined” or fails to specify on the matter, the stop-time rule has not been triggered until the immigrant is scheduled a specific time and place for his hearing.
For immigrants enlisted in the armed forces and whose induction was in the US, and have served in the armed forces for a minimum of 24 months and was separated under honorable conditions, this continuous presence requirement does not apply.
Aggravated Felonies & Crimes Involving Moral Turpitude
Aggravated felonies are particularly serious crimes, and convictions of aggravated felonies may bring about the most severe punishments in immigration law. In addition to deportability, the conviction of an aggravated felony may result in an immigrant’s: (1) ineligibility for most waivers of removal; (2) permanent inadmissibility to the US after removal; and (3) enhanced prison sentence for illegal reentry. Conviction of an aggravated felony will bar immigrants of any status from the relief of cancellation of removal.
Remember, a crime may not be considered an aggravated felony under state or federal criminal law, but it may rise to the level of an aggravated felony for immigration purposes. INA §101(a)(43)(a)-(u) states an expansive list of crimes that fall under aggravated felonies.
Aggravated Felonies include, but are not limited to, the following
- Murder
- Rape
- Drug trafficking
- Money laundering
- Crimes of violence + at least 1 year prison sentence
- Theft/Burglary + at least 1 year prison sentence
- Child pornography
- Prostitution
- Fraud/Deceit
- Alien smuggling
Crimes Involving Moral Turpitude (“CIMT”) often overlap with aggravated felonies and may rise to the level of barring one from various forms of relief. CIMT is a term of arm used within immigration law without a precise definition. CIMT often refers to crimes that are morally reprehensible or otherwise characterized as crimes involving conduct that shocks the conscience.
CIMTs include, but are not limited to, offenses such as rape, murder, robbery, and fraud. When determining whether an offense falls within the meaning of CIMT, a general rule of thumb is identifying whether there was intent or evil motive behind the act or conduct.
For purposes of cancellation of removal, for non-green card holders, conviction of 1 CIMT with a potential sentence of 1 year or longer—even if the offense was not within 5 years of an admission to the US—he is barred from applying for cancellation of removal.
However, for green card holders, only if he has committed and been convicted of a CIMT prior to reaching his 7-year continuous residence requirement, then he is barred from applying for cancellation of removal.
Public Charge
For purposes of cancellation of removal, it is unlikely that public charge status will weigh heavily into your application for removal relief. Public charge refers to someone who is or is likely to become primarily dependent on public benefits or government subsistence.
Cancellation of removal is a form of discretionary relief where public charge inadmissibility grounds do not apply, therefore it is highly unlikely that an applicant who receives public benefits will have an adverse factor to his cancellation application.
Discuss with your immigration attorney if you have any concerns on whether your application might be affected based on public charge circumstances.
Good Moral Character
INA §101(f) defines good moral character (“GMC”) as “character which measures up to the standards of average citizens of the community in which the applicant resides.” Applicants for cancellation of removal must prove he/she has established GMC for 10 years counting backwards from the date of the final decision.
***Note: this 10-year period differs from that of continuous presence as the time accrued for continuous presence STOPS once the immigrant is served the Notice to Appear..
Although determining a person’s GMC is a matter of discretion for the Immigration Judge, INA §101(f) lays out statutory bars to establishing GMC, which include:
- Habitually drunkard;
- One whose income is derived principally from illegal gambling activities;
- Conviction of 2+ gambling offenses;
- False testimony/Fraud;
- Conviction of an offense resulting in an aggregate prison sentence of 180+ days
- Conviction of an aggravated felony;
- One who has participated in genocide, persecution, or acts of torture.
Along with considering case law, the seriousness of the offense, and the negative factors of GMC, an Immigration Judge may also use a balancing test and weigh any positive factors of GMC, such as reformation of character, rehabilitation, voluntary community service, and absence of significant undesirable factors.
Exceptional and Extremely Unusual Hardship
This factor is arguably the most difficult requirement to prove for non-LPR cancellation of removal. Cases involving exceptional and extremely unusual hardship are tough to win and are analyzed by a stringent standard. We dissect this factor under a 2-prong approach: (1) who does the hardship apply to; and (2) what qualifies as exceptional and extremely unusual hardship?
Who does the hardship apply to?
To prove this requirement, it’s important to understand that the hardship of deportation must not be to you, but to a qualifying relative. A qualifying relative can be one of the following:
- A US citizen or LPR parent or step-parent
- A US citizen or LPR spouse from a bona fide marriage
- A US citizen or LPR child who is under 21 years of age and unmarried
If you are applying for non-LPR cancellation of removal and you do not have a qualifying relative, then you are not eligible for this form of relief. However, if you do have a hardship to a non-qualifying relative, discuss with your immigration lawyer on how you can frame that hardship directly or indirectly to a qualifying relative. Creating a strategy on how you frame the hardship may be critical to how you win your case.
What is exceptional and extremely unusual hardship?
When determining hardship for purposes of non-LPR cancellation of removal, in addition to applying case law, the court will analyze several factors of your case. The BIA has held that the standard of showing hardship must be substantially beyond the ordinary standard, meaning mere economic hardship will not constitute a sufficient showing.
Common factors considered include the qualifying relative’s: age, health, length of US residence, lack of financial support resulting from removal, and circumstances in the home country, including language, the standard of living, and availability of education and medication.
For example, for hardship cases, immigration courts often refer to Matter of Recinas (BIA 2002). In Recinas, the BIA granted cancellation of removal to Recinas who met the burden of showing exceptional and extremely unusual hardship to her six children based on the heavy burden to provide sole financial/familial support for her children if deported, the lack of any family in her native country, her children’s unfamiliarity with the Spanish language, and the unavailability of an alternative means of immigrating to this country.
Other Forms of Relief
Cancellation of removal cases involves high standards and is very hard to win. If you are doubtful of your case, speak with your lawyer about other options you may have. Consider if you may qualify for the following:
- Cancellation of Removal for Victims Battered or Subject to Extreme Cruelty by LPR Spouse/Parent: Must meet these requirements for eligibility:
- You have been battered/subject to extreme cruelty in the US by your US citizen or LPR spouse or parent, OR you are the parent of a child of a US citizen or LPR and the child has been battered or subjected to extreme cruelty in the US by a such citizen or LPR parent;
- Prior to service of the Notice to Appear, you have maintained a continuous physical presence in the US for 3+ years and a person of GMC during such period;
- You are not inadmissible/deportable, no conviction of an aggravated felony; and
- Removal would result in extreme hardship to you or your child who is the child of the US citizen or LPR, or you are a child whose removal would result in extreme hardship to you or your parent.
- Asylum/Convention Against Torture: If you have been persecuted or fear future persecution in your country removal based on your race, religion, nationality, political opinion, membership in a particular social group, or fear persecution by the government, speak with your attorney about possible avenues of relief against torture.
- Voluntary Departure: If you are in removal proceedings and/or in the event that your application for cancellation of removal has been denied, you may request a voluntary departure from the Immigration Judge. By doing so, voluntary departure allows you to leave the US within a certain period of time without the enforcement of immigration officials. In addition, the voluntary departure does not result in a period of inadmissibility to the US based on a deportation order. Keep in mind that conviction of certain crimes may bar you from being granted voluntary departure.