The final rule applies to adjustment of status applications postmarked on or after December 23, 2022.
The new public charge rule was issued in response to President Biden’s Executive Order 14012, entitled, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.”
As you might recall, in 2018 former President Trump expanded the public charge rule making it more difficult for green card applicants to immigrate to the United States. Later in 2021, the Biden administration rescinded the Trump administration’s public charge rule and restored the original public charge of inadmissibility guidance that was in place before Donald Trump became President.
To help green card applicants prepare for the change, the Biden administration released a new edition of Form I-485 to better implement the regulations.
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How can the public charge rule impact me?
Biden’s public charge rule will impact all those who are filing Form I-485 Application to Register Permanent Resident or Adjust Status on or after December 23, 2022, with few exceptions.
Although new policy updates are being implemented by the Biden administration, it is important to understand that the “public charge” concept has been around since 1999 when Congress made it a matter of law for a noncitizen’s application for a visa, admission, or adjustment of status to be denied if the applicant is “likely at any time to become a public charge,” on the United States government.
We would like to highlight that in our practice, we have rarely seen an applicant denied solely on public charge grounds, however it is still important to understand what the public charge rule is about and what factors USCIS considers when analyzing whether a green card applicant is currently or likely to become a public charge.
What does it mean to be a “public charge”?
The 1999 Interim Field Guidance published by the former Immigration and Naturalization Service (INS) (now USCIS) defines “public charge” as someone who is “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.”
Accordingly, a public charge inadmissibility determination is based on a noncitizen’s likelihood of becoming primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.
USCIS applies the public charge inadmissibility determination to most noncitizens who are applying for lawful permanent residence (also known as a Green Card) when the Form I-485, Application to Register Permanent Residence or Adjust Status is adjudicated by the agency.
Certain special classes of immigrants are exempt from the public charge ground of inadmissibility.
Who is exempt from the public charge ground of inadmissibility?
The following noncitizens are exempt from the public charge ground of inadmissibility when applying for visas, admission, or adjustment of status:
- Asylees and refugees;
- Amerasian immigrants at admission;
- Afghan and Iraqi interpreters or Afghan or Iraqi nationals employed by or on behalf of the U.S. government;
- Cuban and Haitian entrants at adjustment of status;
- Applicants seeking adjustment under the Cuban Adjustment Act;
- Nicaraguans and other Central Americans who are adjusting status to LPR;
- Haitians who are adjusting status to LPR;
- Lautenberg parolees;
- Special immigrant juveniles;
- Applicants for registry;
- Applicants seeking Temporary Protected Status (TPS);
- Certain nonimmigrant ambassadors, ministers, diplomats, and other foreign government officials, and their families;
- Human trafficking victims (T nonimmigrants);
- Victims of qualifying criminal activity (U nonimmigrants);
- Self-petitioners under the Violence against Women Act (VAWA);
- Certain battered noncitizens who are “qualified aliens” under PRWORA;
- Applicants adjusting status who qualify for a benefit as surviving spouses, children, or parents of military members;
- Noncitizen American Indians born in Canada;
- Noncitizen members of the Texas Band of Kickapoo Indians of the Kickapoo Tribe of Oklahoma;
- Nationals of Vietnam, Cambodia, and Laos applying under the Indochinese Act;
- Polish and Hungarian Parolees;
- Certain Syrian nationals;
- Applicants adjusting under the Liberian Refugee Immigration Fairness (LRIF) law; and
- Any other categories of noncitizens exempt under any other law from the public charge ground of inadmissibility provisions under INA 212(a)(4).
What factors does USCIS consider when making a public charge inadmissibility determination?
For all applicants for adjustment of status who are subject to the public charge ground of inadmissibility, USCIS must consider the statutory minimum factors of age, health, family status, assets, resources, and financial status, and education and skills to determine if the applicant is likely to become a public charge on the U.S. government. The applicant provides relevant information about these factors as part of the adjustment application (Form I-485) and the Report of Medical Examination and Vaccination Record (Form I-693).
In addition to the above statutory factors, USCIS will also consider a sufficient Affidavit of Support Under Section 213A of the INA (Form I-864 or Form I-864EZ), if required, and any current and/or past receipt of public cash assistance for income maintenance or long-term institutionalization at government expense (example: institutionalization in a nursing home or mental health facility).
Receipt of public cash assistance for income maintenance includes only the following:
- Supplemental Security Income (SSI);
- Cash assistance under the Temporary Assistance for Needy Families (TANF) program; and
- State and local cash assistance programs that provide benefits for income maintenance (often called ‘‘General Assistance’’ programs).
USCIS does not consider any of the following public benefits when making a public charge determination:
- Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs (food stamps)
- Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
- School lunch and school breakfast programs
- Benefits under the Emergency Food Assistance Act (TEFAP)
- Child and Adult Care Food Program (CACFP)
- Food Distribution Program on Indian Reservations (FDPIR)
- Children’s Health Insurance Program (CHIP)
- Medicaid (other than support for long-term institutional care), including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, health clinics, short-term rehabilitation services, and emergency medical services
- Health Insurance through the Affordable Care Act
- Any benefits related to immunizations or testing for communicable diseases
- Treatments or preventative services related to COVID-19, including vaccinations
- Home and community-based services (HCBS)
- Housing benefits
- Housing assistance under the McKinney-Vento Homeless Assistance Act
- Cash payments that are provided for childcare assistance or other supplemental, special purpose cash assistance
- Child care related services including the Child Care and Development Block Grant (CCDBG)
- Head Start
- Attending public school
- Student loans and home mortgage loan programs
- Publicly funded scholarships and educational grants
- Foster care and adoption benefits
- Disaster relief programs
- Earned benefits such as Social Security retirement benefits, government pensions, unemployment insurance, etc.
What is different under Biden’s public charge rule?
Under Biden’s public charge rule greater emphasis has been placed on the following statutory factors.
Financial Status – Consideration of the applicant’s debts
When considering the applicant’s financial status, one of the factors that USCIS will consider is the household’s assets and resources, as well as the household’s liabilities or debts. These include both secured and unsecured debts, such as loans (student loans, vehicle loans, home loans etc.), alimony, and child support payments. By taking into account a noncitizen’s household’s liabilities, USCIS has said it can better examine the noncitizen’s overall financial status in the totality of the circumstances.
USCIS considers financial obligations and debts alongside assets and resources to avoid inflating the calculation of a noncitizen’s financial status, as these obligations and debts would decrease the resources that are actually accessible to the noncitizen. However, if a noncitizen has financial obligations and debts, this does not necessarily indicate that the noncitizen is inadmissible under the public charge ground, and USCIS considers this factor in the totality of the circumstances.
Additionally, USCIS will also consider the noncitizen’s education and skills in a public charge inadmissibility determination, such as any degrees, certifications, licenses, educational certificates, and skills obtained through work experience or educational programs.
The applicant will be asked to indicate their education and skills on Form I-485. Skills obtained through work experience (including volunteer and unpaid opportunities) include but are not limited to the noncitizen’s workforce skills, training, licenses for specific occupations or professions, language skills, and certificates documenting mastery or apprenticeships in skilled trades or professions.
While some noncitizens may establish their education and skills through evidence of completed degrees, the statutory education and skills factor does not specify that only formal education is acceptable.
USCIS may consider other evidence of attained knowledge and skills, including those skills earned through certifications and licensure, as well as skills obtained through on-the-job training or overall work experience.
Totality of the Circumstances Test
When evaluating whether a green card applicant is likely at any time to become a public charge, USCIS conducts a “totality of the circumstances” test meaning that the immigration officer will evaluate all the information provided on the Application to Register Permanent Residence or Adjust Status (Form I-485), Report of Medical Examination and Vaccination Record (Form I-693), any other forms and evidence contained in the record, as well as statements made by an applicant during an interview, if applicable.
USCIS also considers all information or evidence in the record that is relevant in the totality of the circumstances.
In summary, there is no “bright-line” test in making the public charge inadmissibility determination. No one factor, other than the lack of a sufficient Affidavit of Support Under Section 213A of the INA, if required, can be the sole criterion for determining if a noncitizen is likely at any time to become a public charge Instead, the officer must determine whether the applicant’s circumstances, assessed in their totality, suggest that the applicant is more likely than not to become a public charge on the United States government.
Applicants must always be truthful when answering the questions asked on the Form I-485 as the form is being signed under penalty of perjury. While it is not necessary to provide supporting documentation or evidence along with the Form I-485 in response to the public charge questions, if asked for additional evidence at a later time you must be prepared to provide it.
Biden’s public charge rule essentially reinstates the 1999 Interim Field Guidance that was in place before President Trump’s overhaul of the public charge rule during his presidential term. In general, this public charge rule removes barriers to immigration, as most immigrants will not be found to be inadmissible based on public charge grounds.
Applicants should also take note that USCIS will only accept the 12/23/22 edition of Form I-485 moving forward for I-485 applications filed on or after December 23, 2022.
Contact Us. If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.
- DHS’s Public Charge Final Rule Goes into Effect on Dec. 23
- Public Charge Ground of Inadmissibility Policy Guidance
- Public Charge Resources
- Policy Manual Update
- Form I-485
- Adjustment of Status Filing Dates from Visa Bulletin
- USCIS Processing Times
- Immigrant Visa Backlog Report
- DOS Visa Services Operating Status Update
- ImmigrationU Membership
- Success stories
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