MHB Immigration Attorneys Offer Guide to New Public Charge Rule

By now almost everyone has heard of this administration’s sweeping changes to the public charge rule, which became effective nationwide on February 24, 2020. Media outlets have continually reported on the severe implications of the new rule—Politico called it a “policy targeting poor immigrants,” Newsweek noted that “critics have branded it a ‘wealth test,’” and the Washington Post emphasized its “cruelty.”  Despite this widespread media coverage, it is difficult to determine the practical implications of this updated rule. Who does it apply to? What new forms will be required? What new information and documentation will applicants need to submit? How does it apply to consular processing versus applications processed by USCIS?

In an effort to demystify the changes to the public charge rule, we address a few common scenarios below, providing a brief summary of how the rule will affect each case:

• Employment-based adjustment of status to lawful permanent residence
  o Officers examining an employment-based adjustment of status case will apply the totality of the circumstances test to determine if the applicant is more likely than not become a public charge—or in other words, use U.S. public benefits in the future.  In making this determination, the officer will weigh the applicant’s: (1) age; (2) health; (3) family status: (4) assets, resources, and financial status; (5) education and skills; (6) visa classification sought and expected period of admission; and (7) Affidavit of Support.  Applicants will be required to submit the Form I-944, Affidavit of Self Sufficiency, and supporting documentation such as tax returns, proof of assets and liabilities, and a credit report. Every applicant for adjustment, including child dependents, must submit the Form I-944.  Employment-based applicants who have an income of at least 250% of the Federal Poverty Guidelines will be in a strong position to demonstrate that they are not likely to become a public charge, because this is considered a heavily weighted positive factor.  However, an applicant with a medical condition that requires ongoing care could face significant difficulty given that this is considered a heavily weighted negative factor.

• Employment-based consular processing for lawful permanent residence
  o Consular officers adjudicating applications for employment-based lawful permanent residence will apply the totality of circumstances test (weighing the same 7 factors above).  Applicants will not be required to submit a Form I‑944.  Instead, applicants will submit a simpler, 4-page, DS‑5540, Public Charge Questionnaire.  Applicants are not required to submit supporting documentation. However, an officer may ask for evidence of income, assets, insurance, and other supporting documentation.  Like with adjustment of status, employment-based applicants who consular process and have an income of at least 250% of the Federal Poverty Guidelines will be in a strong position to demonstrate that they are not likely to become a public charge; whereas an applicant with a medical condition that requires ongoing care could face significant difficulty given that this is considered a heavily weighted negative factor.

• Family-based adjustment of status to lawful permanent residence
  o Officers will weigh the 7 factors listed above to determine whether under the totality of the circumstances the applicant is more likely than not to become a public charge in the future.  Applicants will be required to file both the Form I‑944 and the Form I‑864, Affidavit of Support, as well as submit supporting documentation such as tax returns, proof of assets and liabilities, and a credit report.  Every applicant for adjustment, including child dependents, must submit the Form I‑944.  Unlike in the past, where the scrutiny was on the petitioner/sponsor’s financial situation, the focus will be more on the applicant/beneficiary.  Applicants who have a household income of at least 250% of the Federal Poverty Guidelines will be in a strong position to demonstrate that they are not likely to become a public charge, because this is considered a heavily weighted positive factor.  However, applicants with medical conditions that require ongoing care or applicants without a reasonable prospect of future employment could face significant difficulty given that these circumstances may be heavily weighted negative factors.

• Family-based consular processing for lawful permanent residence
  o Consular officers adjudicating applications for family-based lawful permanent residence will apply the totality of circumstances test (weighing the 7 factors).  Applicants will not be required to submit a Form I‑944, but rather the DS‑5540, Public Charge Questionnaire, along with the Form I‑864.  Applicants are not required to submit supporting documentation with the DS‑5540, but an officer may ask for evidence of income, assets, insurance, and other supporting documentation.  Like with other applicants, those who have an income of at least 250% of the Federal Poverty Guidelines will be in a strong position to demonstrate that they are not likely to become a public charge.  However, applicants with ongoing medical conditions, or applicants without a reasonable prospect of future employment could face significant difficulty given that these circumstances may be heavily weighted negative factors.

• Nonimmigrant visa (e.g., H‑1B, L‑1, O‑1) through USCIS
  o Nonimmigrants applying within the United States through USCIS will also be subject to the totality of circumstances test (weighing the 7 factors).  Applicants will not be required to submit a Form I‑944, but there are new questions on the Form I‑129 that applicants will be required to complete.  These questions mostly seek information on whether the beneficiary of the Form I‑129 has previously received public benefits.

• Nonimmigrant visa through consular processing
  o Nonimmigrants applying through consular processing will also be subject to the totality of circumstances test (weighing the 7 factors).  No additional forms or questions are required at this time, but an officer may ask for the DS‑5540 and/or evidence of income, assets, and/or other documentation related to the 7 factors.  Applicants should also be prepared to submit any U.S. tax returns filed within the last 3 years.

• Change or Extension of nonimmigrant status
  o This category is the only one that is not subject to the forward-looking totality of the circumstances test.  Instead, officers will examine whether the applicant received public benefits in the past (for more than 12 months in the aggregate within any 36-month period since being in nonimmigrant status).  Applicants will not be required to submit a Form I‑944 but should be prepared to present evidence of any public benefits received, as well as any U.S. tax returns within the last 3 years.

The public charge rule does not apply to several types of immigration benefits.  Notably, it does not apply to naturalization, removal of conditions (I‑751), lawful permanent residents renewing their green cards, VAWA, Asylees and Refugees, SIJS, T & U visas, and DACA (be aware that this is not a comprehensive list, but some of the common exceptions).

Please note that the above is a summary of the new public charge rule, and the actual implementation of this rule is a complex matter with many uncertainties.  If you have additional questions on how the public charge rule will apply to your case, we strongly encourage you to reach out to an attorney to discuss the specifics of your situation.