What’s the Deal with the New Public Charge Rule?

There’s been a lot of talk recently about a new “Public Charge” rule, making the adjustment of status process more complicated. But who actually falls under this rule and what does it mean?
Who does this affect?

If you have already submitted an application for admission into the United States or for adjustment of status for legal permanent residence (Green Card), then you do not need to worry about this new rule. Although the original rule was supposed to go into effect on October 15, 2019, lawsuits temporarily halted it and pushed the date back to February 24, 2020. This means that anyone reading this before February 24, 2020 still has some time to apply, so the new public charge rule does not apply to them. If possible, it is recommended that those people try to apply before that date if the rule is at all a concern.

Additionally, if you are filing in the State of Illinois, this rule will not apply to you, at least not yet. A federal court stopped the public charge rule from going into effect specifically in Illinois. It is still recommended that people filing in Illinois try to apply sooner rather than later in case the public charge rule does go into effect. However, for now, Illinoisans have some more time to file before the rule applies to them.
In summary, anyone that is filing for admission into the United States or for a Green Card starting February 24, 2020 will be subject to the new public charge rule (unless you’re in Illinois). If you are already a legal permanent resident and are applying for naturalization (citizenship), the rule does NOT apply.

USCIS has also released a list of groups of people who the public charge rule does not apply to when they apply for a Green Card. These are:

• Refugees
• Asylum applicants
• Refugees and asylees applying for adjustment to permanent resident status
• Amerasian Immigrants (for their initial admission)
• Individuals granted relief under the Cuban Adjustment Act (CAA)
• Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA)
• Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA)
• Individuals applying for a T Visa
• Individuals applying for a U Visa
• Individuals who possess a T visa and are trying to become a permanent resident (get a Green Card)
• Individuals who possess a U visa and are trying to become a permanent resident (get a Green Card)
• Applicants for Temporary Protected Status (TPS)
• Certain applicants under the LIFE Act Provisions

What does the new public charge rule mean?

The phrase “public charge” simply means that an individual is likely to become primarily dependent on government assistance. An immigration officer is required to consider the following: age, health, family status, assets, resources, financial status, education, and skills. Additionally, officers will consider whether an individual has received certain publicly funded benefits such as:

• Supplemental Security Income (SSI),
• Temporary Assistance for Needy Families (TANF) cash benefits[1],
• state and local cash assistance programs,
• and programs like Medicaid that support people in institutionalized long-term care.

The above list is not exhaustive, but receipt of one of these benefits does not necessarily mean you cannot apply. The immigration officer is supposed to consider each individual’s specific circumstances, so a change of circumstances can help you make your case that you will not be a public charge.
The below programs (and state equivalents) SHOULD NOT be considered by an immigration officer:

• Medicaid
• Children’s Health Insurance Program (CHIP)
• Nutrition programs like Food stamps, WIC (Women, Infants and Children), and subsidized breakfast and lunch programs at schools
• Housing benefits
• Childcare services
• Energy assistance
• Emergency disaster relief
• Foster care and adoption assistance
• Education assistance
• Job training programs

What does the process for consideration look like?

With the new public charge rule, USCIS will require a new Form I-944 Declaration of Self-Sufficiency for applicants to show their ability to be financially independent. To fill out the form, you will need information from the following documents:

• IRS tax transcripts / Form W-2 / Social Security Statement
• Credit Report
• Documentation of untaxed income
• Proof of asset-ownership (if applicable)
• Copies of policy pages for health insurance
• Child support orders (if applicable)
• Additional documents that may outweigh negative factors related to a medical condition

Although Form I-944 will now be the focus for determining financial stability, you will still need to fill out Form I-864 Affidavit of Support. This form takes into account the assets of a U.S. citizen or green card holder who is promising to support you financially.

What happens if you are determined a likely public charge?

If you are determined to be too low-income to immigrate or change status, you may be invited by DHS to overcome this decision by posting a public charge bond. The “opportunity” to post a bond is only available to immigrants who are deemed inadmissible only on public charge grounds. The bond will be a minimum of $8,100. You would have to post the bond along with the new Form I-945 Public Charge Bond, which has a $25 filing fee.

To get the bond money back, an applicant must file Form I-356 Request for Cancellation of Public Charge Bond. To be eligible to file this form, the applicant must have been a green card holder for five years, become a U.S. citizen, permanently departed the U.S., obtained a different immigration status not subject to the public charge rule, or if they have died.

For guidance on your case, you can schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.