Who is subject to the Public Charge Rule?
U.S. Immigration law requires that alien immigrants seeking “admission” to the U.S. show that they are admissible in order to qualify for certain immigration benefits. In practice, immigrants meet this requirement in reverse, by proving that they are NOT inadmissible to the United States under the law. Section 212 of the Immigration and Nationality Act contains grounds of Inadmissibility under U.S. Immigration law, one of which is the Public Charge ground. This has been a feature of U.S. Immigration law since the Immigration Act of 1882.
Generally speaking, all applicants for permanent residence (green cards) are by definition, seeking admission to the U.S. and therefore must prove that they are admissible. Again, looking at this in another way, they have to show that they are not subject to any ground of Inadmissibility under U.S. immigration law. This general rule applies to immigrants who are seeking admission as U.S. permanent residents overseas by filing an application for an immigrant visa and to those in the U.S. who are applying for adjustment of status. It also generally applies to applicants for nonimmigrant visas at U.S. consulates. However, applicants for extension of stay and change of status who are already in the U.S. are not subject to the public charge ground of inadmissibility, because Section 212(a)(4) only references applicants for visas, admission, or adjustment of status. Applicants for extension of stay and change of status will, however, be subject to the “public benefits condition” of the new Public Charge Rule, as outlined in more detail below.
In sum, the following groups of applicants will be subject to the Public Charge Rule:
Applicants filing Form I-485 Application for Adjustment of Status. Unless subject to one of the exceptions, most family and employment-based applicants for adjustment of status will be subject to the Public Charge Rule and USCIS will look to see whether they are more likely than not to receive public benefits and become a public charge at any time in the future.
Nonimmigrant applying for an extension of stay or change of status on I-539. While applicants who file an I-539 application to extend or change their nonimmigrant status will not be subject to the prospective public charge analysis (which looks to see whether they will or may become a public charge in the future) they WILL be subject to a retrospective analysis which will look to see if they applied for and received public benefits in the past. More specifically, whether the applicant has received 12 months or more of public benefits during any 36-month period while in the nonimmigrant status he or she wishes to change or extend. As long as the nonimmigrant applicant did not receive public benefits while in that status, then he or she should be able to pass this test.
Applicants for Immigrant Visas at U.S. Consular Posts overseas. Applicants who are applying for immigrant visas overseas will have a similar, but somewhat less involved process of showing that they are not likely to become a public charge in the future. For starters, it should be understood that these applicants are applying with and under the jurisdiction of the U.S. Department of State (DOS), not the USCIS. The DOS published its final Public Charge Rule and set forth more detailed requirements in its Foreign Affairs Manual (FAM). Under these guidelines, applicants will have to file Form 5540 Public Charge Questionnaire at the time that they are applying for their Immigrant Visa (green card). Form 5540 is designed to capture information regarding the immigrant visa applicant’s household size and income, assets, liabilities, education, job skills, health, and receipt of public benefits. While the rules in the FAM are very similar to the rules applied by USCIS (in its Policy Manual), one major difference is that applicants for immigrant visas are not required to submit supporting documentation (unless it is specifically requested on Form 5540). That said, applicants would still be well advised to still show evidence of financial resources, educational degrees, employment history, income, and documentation of English proficiency.
The Public Charge Rule is one of the biggest changes that I have seen in U.S. Immigration law in over 25 years that I have been a practicing Immigration Lawyer. It casts a very broad net over many future green card applicants and will require them to provide a great deal of information and documentation that was previously not required to be disclosed or filed with USCIS; including information and documentation of individuals in the applicant’s household who have nothing to do with their adjustment application or the sponsorship process. Arguably, it is one of the most ambitious and far-reaching regulatory obstacle that the Trump Administration has been able to place in the path of future U.S. immigrants. The new form that must be filed, Form 944 Declaration of Self Sufficiency is 18 pages long and the corresponding Instructions are 15 pages long, and they must be read together and followed very carefully in order to make sure that the underlying I-485 Adjustment of Status application is received as properly filed and not rejected for failure to follow the Instructions.
If you have questions about whether you are subject to the Rule or whether you have to file the new Form I-944 Declaration of Self Sufficiency, contact Immigration Lawyer Sean D. Hummel to schedule a consultation (954) 385-3111, or sean@hummelaw.com. I have spent a considerable amount of time reviewing the I-944 Form and have created a specialized Questionnaire and Document flow chart and checklist to help my clients navigate their way through the Declaration of Self Sufficiency maze.
