Changes to Adjustments of Status After the Public Charge Rule

All applications for adjustment of status shipped on or after February 24, 2020 will be operating under a new rule. This Public Charge Rule is an enormous new regulation that was previously stopped by several courts, but is now going into effect. The rule itself is extremely complicated, but the practical effects for most people are:

• Additional paperwork is now required
• You need to get a credit report and score before filing
• Lots of personal financial information is required

What is the public charge rule

The goal of the new rule is to prevent people who are likely to be low income and who could be dependent on the government from becoming residents in the first place. The government will look to the specific circumstances of the individual to assess their positive and negative factors. The new rule requires the government to specifically consider the applicant’s:

• Age;
• Health;
• Family status;
• Assets, resources, and financial status;
• Education and skills;
• Prospective immigration status;
• Expected period of admission; and
• Sufficient Form I-864, when required under section 212(a)(4)(C) or (D) of the INA.

The new process requires applicants to submit a large amount of financial information, mostly via the new Form I-944 Declaration of Self-Sufficiency. This form adds another 18 pages to an already paperwork-intensive process and a number of challenging questions that may be difficult for non-lawyers and non-English speakers to completely understand.

In addition to the required factors, the government will be considering certain circumstances are weighing heavily in favor of finding someone a public charge, or against it. USCIS has stated the following negative factors that count against a person:

• The alien is not a full-time student and is authorized to work but cannot show current employment, recent employment history, or a reasonable prospect of future employment.
• The alien has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Oct. 15, 2019 (this may now be updated to February 24, 2020).
• The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition.
• The alien has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.

The following positive factors would weigh in favor of an immigrant not being a public charge:

• The alien has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for his or her household size.
• The alien is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of his or her household size.
• The alien has private health insurance appropriate for the expected period of admission, so long as the alien does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.

It is unclear the exact process that immigration officers will be following to weigh and consider these different factors. Most applicants for adjustment of status don’t request, qualify for, or receive public benefits. Those who do are typically exempt from this requirement and the new rule. Many immigrants are not authorized to work without a work permit, so it should not be considered to be a negative factor if they do not work. Applicants already have to complete the I-864 which requires a specific income level, however this new process suggests that 250% of the federal poverty guidelines will be more important than the 125% used to evaluate the I-864.

Because the rule is new, everything about it is likely to be challenged in courts and litigated extensively. It may eventually be replaced by another administration. No doubt it is going to cause numerous issues in the meantime. Many people are likely to fail this requirement and will be sent into immigration court proceedings as a result. The immigration courts are already severely overwhelmed and backed up.

What categories of immigrants are not required to show they are not going to be a public charge?

Certain immigrants are completely exempt from the public charge ground and do not even need to complete the form I-944. It does not matter if they are a public charge or are likely to become a public charge and use different types of public benefits. The process is largely unchanged for them. This includes people applying for adjustment of status:

• As a VAWA self-petitioner;
• As a Special Immigrant Juvenile;
• As a Certain Afghan or Iraqi national;
• As an Asylee;
• As a Refugee;
• As a victim of qualifying criminal activity (U Nonimmigrant) under INA section 245(m);
• Under any category other than INA section 245(m) but you are in valid U nonimmigrant status at the time you file your application for adjustment of status. (This exemption only applies if, at the time of the adjudication of the Form I-485, you are still in valid U nonimmigrant status. If, at the time of adjudication of the Form I-485, you are no longer in valid U nonimmigrant status, you may be required to submit a Form I-944 and a Form I-864).
• As a victim of human trafficking (T nonimmigrant) under section 245(l) of the INA;
• Under any category other than INA section 245(l), but you either have a pending application for T nonimmigrant status (Form I-914) that sets forth a prima facie case for eligibility, or are in valid T nonimmigrant status at the time you file your application for adjustment of status. (This exemption only applies if your Form I-914 is still pending and deemed to be prima facie eligible, or you are in valid T nonimmigrant status when we adjudicate your adjustment of status application);
• Under the Cuban Adjustment Act;
• Under the Cuban Adjustment Act for battered spouses and children;
• Based on dependent status under the Haitian Refugee Immigrant Fairness Act;
• Based on dependent status under the Haitian Refugee Immigrant Fairness Act for battered spouses and children;
• As a Lautenberg Parolee;
• Under the Indochinese Parole Adjustment Act of 2000;
• Based on continuous residence in the United States since before January 1, 1972 (“Registry”);
• Under the Amerasian Homecoming Act;
• As a Polish or Hungarian Parolee;
• As Nicaraguans and other Central Americans under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA);
• As an American Indian Born in Canada (INA section 289) or the Texas Band of Kickapoo Indians of the Kickapoo Tribe of Oklahoma, Pub. L. 97-429 (Jan. 8, 1983); or
• As a spouse, child, or parent of a deceased soldier under the National Defense Authorization Act (NDAA).

What new steps are required for those immigrants who are required to show they’re not a public charge?

The new rule required several important forms to be updated. That means that anyone who has already prepared paperwork needs to check each form to see if a new one is now required. The forms currently accepted by USCIS are shown on each form page on the USCIS website.

Most individuals will now need to submit the form I-944, Declaration of Self-Sufficiency. This and every immigration form needs to be sent with all the evidence required. Not doing so could result in rejection, denial, loss of filing fees, and referral to immigration court for removal proceedings.

The I-944 is completed by the applicant for adjustment of status, not the petitioning family member. The form requests the following information:

• Basic personal information
• Information for each household member
• Income information from the most recent tax return for each household member that reported income
• Income information not included in tax returns, such as child support or unemployment benefits
• Household assets and resources, such as a home (minus mortgage and liens), cash, and anything that can be converted into cash within 12 months, including cars if you own more than one car
• Liabilities and debts
• A credit report, credit score, and explanation for a low credit score
• US or foreign bankruptcies
• Health insurance and explanation for how you plan to pay for medical costs
• Receipt of public benefits, or certification to receive them in the future
• Applications for public benefits, whether approved or denied
• Use of federally-funded Medicaid
• Education and occupational skills
• Language ability in English and other languages

Anyone who needs to comply with the new rule is strongly recommended to work with an attorney because the law is complex. Even before getting started, it is recommended to gather the following documents and information:

• A credit report and credit score for the person applying for adjustment of status (not the petitioner in most cases)
• Health insurance if possible for the applicant for adjustment of status without any government subsidies
• All financial records for all household members with income, including the most recent tax filing with all attachments such as W-2s, any evidence of income such as workplace letters or paycheck stubs for at least six months, and any other income evidence
• File taxes with a qualified tax preparer and make sure all income is reported
• All debts, such as credit cards, personal loans, mortgages, unpaid taxes, unpaid child support, and car loans
• Documents for any local or foreign bankruptcies
• Documents from any prior requests for public benefits
• Evidence of education, trade and occupational certifications or licenses