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WHAT IS THE NEW PUBLIC CHARGE RULE AND HOW DOES IT IMPACT ADJUSTMENT OF STATUS APPLICATIONS?

Since the end of February 2020 applicants who apply for lawful permanent residence (a “green card”) either through the Department of State or who are here in the U.S. and apply with U.S. Citizenship and Immigration Services – are subject to a new rule to decide who is considered a “Public Charge” (someone who is likely to need financial help from the U.S. government) at any time in the future. They will use information about your past to determine whether you could become a “Public Charge.” The new rules have received a lot of media attention, but you should know that there are many immigrants who might be exempt from these new rules. Since the interpretation of the public charge rule is constantly changing it is important for applicants applying for lawful permanent residence to receive the advice of counsel.

The immigration laws as  written require applicants who apply for adjustment of status to demonstrate financial self-reliance.  This used to be done solely by demonstrating that the applicant has a petitioner and/or sponsor who is willing to essentially sign a binding contract that he or she will not allow the applicant to become a financial burden to the U.S. government.  If a sponsor did not have enough income to show financial support then an applicant could find a co-sponsor.  The immigration office would typically only look at the income of the petitioner/sponsor and not the immigrant’s earnings. This binding affidavit of support is submitted through Form I-864 and a complete I-864 or binding contract pledging support of the immigrant was all that was required in the past. 

The new public charge rule now focuses on the green card applicant/beneficiary and not the sponsor.  In addition to Form I-864, Affidavit of Support, discussed above, applicants must file Form I-944, Declaration of Self-Sufficiency. This form looks at whether the green card applicant has the ability to become financially self-sufficient. Some applicants are exempt based on the manner of which they are applying for lawful permanent residence.  However, generally speaking, the new public charge rule is applicable to all family-based applications.

A public charge now means someone who is likely to receive certain government public benefits at any time in the future.  If an applicant has ever received certain public benefits then he or she is automatically considered a public charge.  There are certain exemptions such as Emergency Medicaid, services received under the Disabilities Education Act, school-based services, benefits received under the age of 21, benefits received by military families, and benefits received by pregnant women.  Typically, immigrants aren’t eligible to receive many of the benefits that make someone a public charge.  

The immigration office will look at many factors to determine whether the applicant will become a public charge.  The office will look at the following:

  • Age – whether the applicant is at an employable age;
  • Health – whether an applicant has a medical condition that impacts care, school attendance, or ability to work;
  • Family Status –whether the applicant has a large household size (smaller households would be considered better);
  • Assets and Financial Status –is the applicant’s household income 125% above the federal poverty level and can cover his or her own medical expenses, can the applicant provide proof that he or she has not received public benefits, what is the applicant’s credit history, and can he or she submit proof of private health insurance;
  • Education and Skills –whether the applicant has adequate education and skills to maintain employment (must show high school diploma, English language proficiency, employment history, occupational skills certificates); and
  • Signed Affidavit of Support – proof that the applicant has a financial sponsor (Form I-864 discussed above).

It is still unclear how much weight the immigration office will place on each factor listed above.  For example, will an older highly educated applicant meet the threshold? Will a younger applicant who has never worked and has no credit history or have much education meet the threshold?  There are still a lot of things unknown.  Currently, immigration attorneys have submitted applications but they have yet to be processed by the office.  Immigration attorneys will learn more about how the new rule is interpreted as the year progresses.  If you have questions and or want to file an adjustment case, now is the time to seek out assistance from Kasturi Law, LLC. Feel free to call 630-392-8101.

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