Heavily Weighted Negative and Positive Factors under the Public Charge Rule

As explained in a previous post, the Public Charge Rule requires USCIS adjudicators to apply a minimum of seven different factors to immigrant applicants to determine whether they are likely to become a public charge in the future. This has become known as the “Totality of Circumstances” test.

In addition to applying this test, adjudicators are also required to look for specific circumstances in each case that would weigh heavily in favor of or finding that an applicant is likely to become a public charge in the future. Any factor that increases the likelihood that an applicant will receive one or more public benefits for 12 months within any 36 month period is negative. Any factor that decreases the likelihood that an applicant will receive one or more public benefits for 12 months within any 36 month period is positive. These are referred to as “Heavily Weighted Negative Factors” and “Heavily Weighted Positive Factors.”

The Heavily Weighted NEGATIVE FACTORS set forth in the Public Charge Rule are:

• The Applicant is NOT a full-time student, is authorized to work in the U.S., but is unable to demonstrate current employment, recent employment history, or reasonable prospect of future employment OR that the applicant’s household does not have income or assets at or above 125% of the Federal Poverty Guidelines (FPG).

• The Applicant has received, been certified or approved to receive certain public benefits in the U.S. beginning on or after 2/24/20, or for more than 12 months in the aggregate within the 36 months immediately preceding adjudication of the visa application, whichever is later.

• The Applicant has a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide for himself, attend school, or lacks insurance and has no reasonable prospect of obtaining private insurance and no financial resources to pay for medical costs.

The Heavily Weighted POSITIVE FACTORS set forth in the Public Charge Rule are:

• Prior finding of inadmissibility or deportability on Public Charge grounds.

• The Applicant’s household has income, assets, resources, or support from a sponsor, of at least 250% of FPG for the applicant’s household size.

• The Applicant is currently employed or is expected to be employed in the U.S. with an annual income of at least 250% of the FPG of the applicant’s household size.

• The Applicant has APPROPRIATE private Health Insurance for use in the U.S. covering the period the applicant is expected to remain in the U.S., which excludes subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act.

While USCIS has specifically stated that a finding of any one of the above factors (whether negative or positive) by itself will not result in final public charge determination, USCIS has ALSO confirmed that the absence of a sufficient I-864 Affidavit of Support, where required, will definitely lead to an inadmissibility finding. In my opinion, the flip side of this is that applicants who are currently employed or are expected to be employed in the U.S. with an annual income of at least 250% of the FPG of the applicants household size (the 3rd heavily weighted positive factor above) will be a MAJOR POSITIVE FACTOR and might actually be sufficient to get an applicant past public charge scrutiny.

If you have questions about the new Public Charge Rule, contact my office to schedule a consultation to discuss your case. In addition to having practiced U.S. Immigration law for over 25 years, I have spent a considerable amount of time reviewing all of the Public Charge Rule requirements and forms in order to deliver the highest level of professional service and advice to all my clients. Invest in your future today by hiring my firm so that I can put my years of experience to work for you and your family, and together, we can improve your chances of getting your Adjustment of Status application approved.