Latest Public Charge Update

March 9, 2021

USCIS is no longer applying the August 2019 Public Charge Final Rule. As a consequence, among other changes, USCIS will apply the public charge inadmissibility statute consistent with the 1999 Interim Field Guidance. In other words, USCIS is not considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.

Background

On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Inadmissibility on Public Charge Grounds final rule (84 Fed. Reg. 41,292 (Aug. 14, 2019)), as amended by Inadmissibility on Public Charge Grounds; Correction, 84 Fed. Reg. 52,357 (Oct. 2, 2019) (Public Charge Final Rule) nationwide. That decision was stayed by the U.S. Court of Appeals for the Seventh Circuit.

On March 9, 2021, the Seventh Circuit lifted its stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. When the vacatur went into effect, USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. USCIS continues to apply the public charge inadmissibility statute, including consideration of the statutory minimum factors in the totality of the circumstances, in accordance with the 1999 Interim Field Guidance that was in place before the Public Charge Final Rule was implemented. In addition, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status.

Applicants and petitioners should not provide information or evidence related solely to the Public Charge Final Rule. That means that applicants for adjustment of status should not submit Form I-944, Declaration of Self Sufficiency, or any evidence or documentation required by Form I-944 when they file their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).

If an applicant or petitioner already provided information related solely to the Public Charge Final Rule, and USCIS adjudicates the application or petition on or after March 9, 2021, USCIS will not consider any information that relates solely to the Public Charge Final Rule, including, for example, information provided on Form I-944, evidence or documentation submitted with Form I-944, or information on the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3). Any other information received will be evaluated consistent with the statute, regulations, and policies in effect at the time of adjudication.

If you received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required under the Public Charge Final Rule, including but not limited, to Form I-944, and your response is due on or after March 9, 2021, you do not need to provide that information. However, you do need to respond to the aspects of the RFE or NOID that otherwise pertain to the eligibility for the immigration benefit sought. If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and consistent with the 1999 Interim Field Guidance, we will issue another RFE or NOID.

USCIS will issue additional guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I-485 based on the inclusion or exclusion of Form I-944, and will not reject Form I-129, Form I-129CW, Form I-539, or Form I-539A based on whether the public benefits questions (Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3)) have been completed or left blank.

The Affidavit Of Support

Affidavits of Support have long been required in many immigration cases, most notably when someone applies to become a Lawful Permanent Resident.  The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) completely overhauled the prior system regarding Affidavits of Support, and also lead to the creation of an entirely new Affidavit of Support (Form I-864).  The major change brought about by the law was that all Affidavits of Support must be executed as enforceable contracts.  The legally enforceable form must be completed by U.S. Citizens and Lawful Permanent Residents who sponsor family members as immigrants to live in the United States.  The new Affidavit of Support form was required for immigrant visa and adjustment of status applications filed on or after December 19, 1997.

 

To ensure that the immigrants are not likely to rely on public benefits, sponsors must demonstrate on the form that they meet minimum income requirements and can be financially responsible for the sponsored immigrants.  Sponsors must complete the Affidavit of Support form for relatives who file applications for immigrant visas or for adjustment of status on or after December 19, 1997.

Affidavit of Support Income Requirements

The law requires a sponsor to demonstrate an income level at or above 125 percent of the Federal poverty line, as published annually by the Department of Health and Human Services.  To establish income level, sponsors must provide proof of current employment and copies Federal income tax return information. The income of certain other household members may be added in computing income level if they sign a contract, Form I-864A, agreeing to make their income and/or assets available for the support of the sponsored immigrants.

 

If the sponsor’s household income does not meet the income requirements, evidence of assets, such as cash in savings accounts, stocks, bonds, or property, may be considered in determining the sponsor’s ability to support the immigrant, but those assets must be at least five times 125 percent of the Federal poverty line.

 

If the sponsor cannot meet the required income level based on income and assets, another person may serve as a joint sponsor.  The joint sponsor must meet all sponsorship requirements, other than being the petitioner, and be willing to assume joint and severable legal liability for the sponsored immigrant(s) with the petitioning relative.

Enforcement of the Affidavit of Support

Most immigrants who are sponsored under the Affidavit of Support will be barred from federal means-tested public benefits programs for five years.  After five years, public benefit granting agencies will be able to count the income and resources of the sponsor, and the sponsor’s spouse, as part of the immigrant’s income in determining whether the immigrant is eligible to receive public benefits.  This action is called “deeming.” States may also choose to “deem” in determining eligibility for their own means-tested public benefit programs.

 

The Affidavit of Support is enforceable against the sponsor until the immigrant becomes a U.S. Citizen, can be credited with 40 quarters of work, leaves the United States permanently, or dies.  If sponsors do not provide basic support to the immigrants they bring to the United States, they may be sued by the sponsored alien, by the Federal Government, and by any subdivision of a State Government for the amount of the means-tested public benefits provided to sponsored immigrants.

 

DHS’s New Public Charge Final Rule

August 14, 2019

On Wednesday, August 14, 2019, the Department of Homeland Security (DHS) published a final rule governing the public charge grounds of inadmissibility, which went into effect on February 24, 2020.

 

The DHS final rule dramatically changes the standard by which the Department determines whether an applicant for adjustment of status or admission is "likely at any time to become a public charge" and therefore inadmissible to the United States (note that some noncitizens, such as asylees and refugees, are exempt from public charge determinations).  Under the final rule, United States Citizenship and Immigration Services (USCIS) removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).  The final rule defines a public benefit as:

 

  1. Any federal, state, local, or tribal cash assistance for income maintenance, including:
       a.  Social Security Income (SSI), 42 U.S.C. 1381 et seq.;
       b.  Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.;
       c.  Federal, state, or local cash benefits programs for income maintenance (often called "General Assistance" in the
            State context, but which also exist under other names);

     

  2. Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c;
     

  3. Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f;
     

  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
     

  5. Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
     

  6. Public housing under section 9 of the U.S. Housing Act of 1937
     

A sufficient Affidavit of Support will not be outcome-determinative as to whether an individual is likely at any time in the future to become a public charge.  Rather, to make that assessment, USCIS adjudicators will apply a complex totality of circumstances test that weighs the alien's age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors.  USCIS notes in the final rule that it interprets "likely at any time" to mean that it is "more likely than not" that the individual at any time in the future will receive one or more public benefits as defined by the rule.

 

One heavily weighted negative factor is an applicant's receipt of specified public benefits for 12 or more months in the aggregate within any 36-month period, beginning no earlier than the 36 months prior to the application for adjustment of status or adjustment.  Critically, however, DHS will not regard as a negative factor the receipt of specified benefits prior to the rule's effective date, with the exception of cash assistance and long-term institutionalization benefits that DHS already considers relevant to the public charge determination under current policy.

 

Under the final rule, DHS will also conduct a more limited public charge determination of nonimmigrants seeking a change or extension of status, by removing the future-looking requirement of the public charge determination, and only considering whether the noncitizen has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they seek to change from or extend, through the adjudication of that request.

 

Consequences of Rule

The DHS final rule, which is vastly more restrictive than current policy, could result in significantly higher USCIS denial rates of adjustment of status applications subject to public charge determinations.  Moreover, the multi-factor test will leave substantial discretion to adjudicators and could produce inconsistent and unpredictable decision-making. Additionally, the rule will prove burdensome for the public and DHS alike.  It requires that adjustment of status applicants subject to public charge determinations prepare and submit lengthy Form I-944, Declaration of Self-Sufficiency, with their filings.  USCIS's review of hundreds of thousands of these new forms each year will further slow the agency's already severely delayed case processing.

 

Relationship Between DHS Rule and Other Agencies' Public Charge Policies

In its final rule, DHS noted its expectation that the State Department will align its own public charge policy with DHS's.  Even prior to DHS's publication of its proposed public charge rule in 2018, the State Department had changed its public charge policy significantly-changes that have resulted in a striking rise in visa denials on public charge grounds.  Further changes to State Department policy made to align with DHS's final rule could result in even higher rates of such visa denials. Separately from the DHS rule, the Department of Justice (DOJ) is developing a rule that will change its policy regarding inadmissibility and deportability on public charge grounds.  DHS states in its final rule that it "will work with DOJ to ensure consistent application of the public charge ground of inadmissibility."

Do you have further questions on affidavits of support, requirements surrounding Lawful Permanent Residency, or the latest changes to the rule regarding public charge? Contact Savitz Law Offices today