News & Insights

The Dawn Of A New Era: Becoming Familiar With The New Public Charge Rule

It feels like we are writing a new blog almost every week.  Under the Trump administration, we have seen several new policies, and this one is no different.  The new public charge rule seeks to once again limit legal immigration by targeting low- income, low- skilled poorly- educated, elderly or disabled individuals and making it more difficult for them to become green card holders.

However, what’s different about this new rule is that it requires a USCIS officer to make a prospective determination as to whether an applicant is likely to become a public charge.

The new rule goes into effect on February 24, 2020 after the Supreme Court granted the Trump Administration permission to move forward with it on January 27, 2020.

This new rule impacts almost every immigration petition filed with USCIS, although it appears to be mostly aimed at applicants filing an adjustment of status applications.

Some highlights of the new rule are listed below:

  • USCIS will now make a determination as to whether an applicant is likely to become a “public charge.” A public charge means likely to receive public benefits at any time in the future. An officer will now have to make a determination as to whether an individual is more likely to receive one or more public benefits for more than 12 months in the aggregate within any 36 month period (a receipt of two benefits in the same month will count as two months).  You might wonder how on earth an officer is even qualified to make this determination. What’s more interesting is that USCIS will not look at the requirements to become eligible for a benefit. This means an officer could determine that an individual is likely to receive a benefit for which he/she is not even eligible!

  • This new rule will apply to the majority of I-485 adjustment of status applications, with limited exceptions.

  • Public benefits will include SSI, TANF, general assistance, SNAP i.e. food stamps, Section 8 Housing Assistance, Section 8 Project-based Rental Assistance, Medicaid and public housing.

  • In determining whether an applicant is likely to become a public charge USCIS will weigh all positive and negative factors related to an applicant’s age, health, family status, assets, resources and financial status, education and skills, prospective immigration status and period of stay. This rule is bad news for applicants who cannot work or are on a low income, have a serious medical condition requiring future treatment, or have financial liabilities and limited asset ownership.

  • It will be considered a negative factor for someone who is authorized to work, is not a full-time student and is not currently employed or has no reasonable prospect of finding a job.

  • If an applicant is deemed to be a public charge, they may be invited to post an Immigration bond to guard against the likelihood of receiving public benefits, expected to be at least $8,100.00.

  • There is at least some good news for non-immigrants. The standard has been lowered and USCIS will only look at whether a non-immigrant has received 12 months or more of benefits during any 36- month period while in the non-immigrant status he or she wishes to extend.  USCIS will not consider whether a non-immigrant is likely to become a public charge, so if a non-immigrant has not received any past benefits, they should not have a problem overcoming the new rule.

  • I-485 applicants filing on or after Feb 24 will now be required to submit an additional form, namely I-944, declaration of self-sufficiency. This is an 18-page form that will include an examination of an applicant’s work history, education and skills, ability to speak English, financial circumstances to include debts and assets and receipt of public benefits.  Additionally, an applicant will be required to submit a credit report, 12 months of bank statements and proof of other asset ownership, a copy of their health policy and many other documents.

  • The I-944 will be required in addition to the I-864, affidavit of support. However, the focus will shift from the Petitioner to the I-485 applicant.

  • It’s possible that someone who is deemed inadmissible under the new public charge rule could be subject to deportation.

While we expect this new rule to mostly affect family-based petitions it also creates new requirements for employment-based petitions and will be applied to those filing non-immigrant petitions such as H-1Bs, H-4s, L-1s, etc.  For this reason, you should make yourself familiar with the new rule in case it affects you and your eligibility for an immigration benefit.

If you would like to schedule a consultation to find out how this new rule affects you, please contact our Senior Immigration Attorney Chris Prescott at cprescott@patellegal.com

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