By Perry and Alznauer, P.C.
Under U.S. immigration, foreign nationals seeking admission to the U.S. who present a risk of becoming a “public charge” are inadmissible. In simple terms, this means that green card applicants who are likely to depend on various government-funded benefit programs are ineligible for green card status. Not all applicants are subject to the public charge rule; it mainly affects those applying for Lawful Permanent Resident status through petitions by family members.
Public charge law does not apply generally to lawful permanent residents applying to become U.S. citizens. In addition, there are some immigrant categories, such as U visa holders, T visa holders, asylees, refugees, and certain others, that are exempt from the public charge ground of inadmissibility.
If an applicant has a pending adjustment of status application postmarked before February 24, 2020, with the USCIS, it will be decided under a long-standing, less restrictive analysis.
The new public charge regulation, scheduled to take effect on February 24, vastly expands the number of immigrants who can be considered a “public charge” based upon their “likelihood” of using certain types of government assistance. Legal immigrants living in the United States who lawfully used Supplemental Assistance Program (SNAP), food stamps, Children’s Health Insurance Program (CHIP), Affordable Care Act (Obamacare), or other public benefits could be highly impacted negatively by the new regulation.
Case officers will now consider a minimum of 7 factors to make this determination: 1) age; 2) health; 3) family status; 4) assets, resources and financial status; 5) education and skills; 6) visa category sought and expected period of admission; and 7) submission of an adequate Form I-864 (Affidavit of Support).
Starting February 24, 2020, applicants filing for adjustment of status must submit an nearly a dozen revised forms, including the affidavit of support (Form I-864), and three (3) new comprehensive forms such as I-944 Declaration of Self-Sufficiency, I-945, Public Charge Bond, and I-356, Request for Cancellation of Public Charge Bond, plus additional documents like credit reports, bank records, and additional financial statements just to name a few, in order to demonstrate that they are not likely to become a public charge.
The Department of Homeland Security (DHS) adjudicator will decide if the applicant may submit a bond to satisfy the public charge analysis. DHS retains full discretion as to whether or not to request an applicant to submit a bond. If someone has one or more of the heavy negative factors stated above s/he will likely be disqualified from submitting a bond.
Over the last few decades, a person applying for adjustment of status may submit an affidavit of support (Form I-864) from one or more sponsors to show that they are able to financially support the applicant in order to address the public charge issue. This has changed over the last few months as the Trump Administration continues to change regulations making it increasingly difficult for immigrants to adjust their status.
The new public charge rule is making it even harder for many immigrants to legalize their status and will affect thousands of families seeking to reunite in the United States. Projections of the number of people the new rule will affect range from hundreds of thousands to millions of applicants. It is important to consult and seek help from a qualified immigration attorney before you file an adjustment of status application as s/he will be able to address negative factors that may affect your results and at the same time provide a thorough review of your immigration history and background.
