Immigration News: What is the New Public Charge Rule?

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We have received several phone calls from clients asking about the new public charge rule under the current administration. Immigration law is a fast-changing and complex area of the law. Today, we will answer common questions regarding the new public charge rule in 2020.

What is public charge?

A “public charge” rule has been an element of immigration law for several years. However, under the Trump administration, the definition of public charge has changed. The rule affects people who apply for a green card from inside the United States and certain non-immigrants who are changing status. Specifically, the new public charge rule changes the way that the government evaluates intending immigrants filing an adjustment of status application (Form I-485).
Public charge has always been one of the grounds of inadmissibility for new immigrants. If an individual is inadmissible, admission to the United States or adjustment of status is not granted. All family-based applications were subject to these grounds, but other categories were exempt. In the past, the United States government defined a public charge as a person who is “primarily dependent on the government for subsistence,” as demonstrated by either (1) the receipt of public cash assistance for income maintenance or (2) institutionalization for long-term care at government expense. That definition has changed.

What is the new public charge rule?

Under the new public charge rule, U.S. Citizenship and Immigration Services (USCIS) will now make a determination if you will likely become a public charge at any time in the future based on certain criteria. When deciding if you are more likely than not to become a public charge at any time in the future, a USCIS officer will look at the following set of factors:
 Age
 Health
 Family status
 Assets, resources, and financial status
 Education and skills
 Affidavit of support (I-864)

How is the background information obtained?

To obtain this background information, USCIS requires most applicants to file Form I-944, Declaration of Self-Sufficiency, and Form I-864, Affidavit of Support, with your adjustment of status package. The officer will evaluate all the factors above and decide based on the “totality of the circumstances.” Basically, this means that positive factors will be considered and weighed against negative factors.
Please NOTE: Covid-19 is NOT a public charge factor.

Now let’s take a closer look at the factors mentioned above:

Age: Obviously, there is nothing that can be done with regard to your age, but the USCIS officer will assess whether your age makes you more or less likely to become a public charge at any time in the future. Therefore, if you are between the ages of 18 and 61, USCIS considers your age as a positive factor in the totality of the circumstances. Typically, applicants in this age range are actively and gainfully employed. However, there is no need to worry if you fall outside of this range. Applicants can overcome the negative age factor with other positive factors, such as current employment, employment history, income over the 125% of the Federal Poverty Guidelines (FPG) threshold, having retirement savings or retirement benefits, or other non-governmental resources.

Health: Significant health issues are likely to be viewed as a negative factor in determining the possibility of becoming a future public charge. An existing medical condition, especially one that is likely to incur significant cost or greatly limit the applicant’s daily activities, will be considered a negative factor.

USCIS officers will use your medical examination (Form I-693) to evaluate your health. Generally, a Class A or Class B medical condition that is determined to interfere with your ability to provide and care for yourself, to attend school, or to work, or that is likely to require extensive medical treatment in the future, will be weighted as a negative factor.

Class A medical conditions are communicable diseases of public health significance per the HHS regulation, which render a person inadmissible and ineligible for a visa or adjustment of status. Other conditions that fall under Class are drug abuse or addiction, present or past mental disorder with harmful behavior that is likely to recur, and failure to present vaccine records for vaccine-preventable diseases.

Class B medical conditions are defined as physical or mental health conditions, diseases, or disability serious in degree or permanent in nature. This may be a medical condition that, although not rendering an applicant inadmissible, represents a departure from normal health or well-being that may be significant enough to interfere with the applicant’s ability to care for him/herself, to attend school, or to work; or requires extensive medical treatment or institutionalization in the future.

Family Status: USCIS considers household size in relation to income, assets, and resources to determine whether the applicant is likely to become a public charge in the future. For child applicants, USCIS reviews the income, assets, and resources of household members in the parents’ household.
If the applicant is able to support him/herself and the applicant’s household members at 125% of the Federal Poverty Guidelines (FPG) for the applicant’s household size, then this would be considered a positive factor. On the contrary, if the applicant is not able to support him/herself and the household members at 125% of the FPG for the respective household size, then this is deemed a negative factor. Please NOTE: For active-duty military (except active duty for training), the threshold is reduced to 100% of the FPG.

Assets, Resources, and Financial Status: USCIS will consider your assets, resources, and financial status when determining whether you are likely to become a public charge at any time in the future. Simply, the more assets and resources an applicant has, the more self-sufficient he or she is likely to be. On the contrary, an applicant’s lack of assets and resources, including income, makes him or her more likely to receive public benefits.

This category is a comprehensive evaluation of your financial history and delves deeper into your creditworthiness. Your credit report and score will also be scrutinized. A credit score of 670 or higher will bode well for you and will be deemed a positive factor. Similarly, USCIS will evaluate your ability to pay reasonable medical costs. If you have private health insurance, this factor will weigh heavily in your favor. It is recommended that you sign up for a health insurance plan prior to filing for adjustment of status. Furthermore, applying for and/or receiving public benefits will likely be viewed as a substantial negative factor. Generally, this won’t be an issue for most applicants as non-immigrants typically are not eligible for these benefits.

Education and skills: Generally, a person with current employment or recent employment history will have more opportunities for employment in the future. The government prefers employable applicants because they are more likely to be self-sufficient in the future. Being employed with an income above 250% of the Federal Poverty Guidelines (FPG) is considered a heavily weighted positive factor. Additionally, USCIS considers household contributions through primary caretaking responsibilities as a positive factor. Being a primary caretaker is considered in the totality of the circumstances and may outweigh a negative factor related to the applicant’s education and skills.

A person with higher education will generally have more opportunities for employment at higher salaries. The government views applicants unfavorably if they don’t have a minimum of a high school diploma or equivalent secondary education certificate. However, being a full-time student is also valued considerably and shows the government your desire for lucrative employment in the future. Additionally, an applicant who has specific skills and certifications is generally more easily employed and has less likelihood of becoming a public charge in the future. For example, occupational skills such as a mechanic, plumber, electrician, painter, agricultural worker, welder, or other trade are valuable. Likewise, licenses for certain professions improve opportunity as well.

Moreover, being proficient in English makes it easier to prove future employability. An officer may determine your ability to speak and understand English based on your ability to respond to questions normally asked in an interview, if applicable. Your proficiency with the English language will be viewed as a positive factor.

Affidavit of Support (I-864): USCIS reviews the annual income of the sponsor providing support to determine if he or she is able to support the applicant. Under the statute, the minimum income to establish a sufficient Form I-864 is generally 125% of the FPG (100% for active-duty military) based on the sponsor’s household size plus the total number of sponsored immigrants and dependents supported by the sponsor. An adequate Affidavit of Support is a positive consideration in the totality of the circumstances. However, several factors can potentially weaken this support, giving it less positive consideration. Circumstances that can reduce the positive weight of an Affidavit of Support include the sponsor’s receipt of public benefits, previous bankruptcy, outstanding sponsorship of multiple applicants, and receipt of a fee waiver. A sufficient Affidavit of Support is a positive consideration in the totality of the circumstances. The greater a sponsor’s income and available assets, the greater the positive weight will be applied.

I built my law practice on the premise of being a life raft in a sea of sharks. I want to be an advocate for those that have been wronged and are too intimidated to seek help. My firm is here to explore your options, guide you through your legal journey, and give you that safe space to ask questions! There’s no such thing as a stupid question…Only the ones you don’t ask. So, my question to my clients is not “do you have any questions?” But rather “what questions do you have?”

As always, the Kazi Law Firm is standing by to help you in your time of need. Don’t hesitate to contact us today. We specialize in real estate law, landlord-tenant disputes, immigration, and wills & estate planning. Family is at the core of our practice. Just as we treat our family with respect and understanding, we treat yours. Come join the Kazi Law Firm family today! Why swim alone in shark-infested waters when you don’t need to?