DHS and DOS Implement Public Charge Rule, Along with New Forms

This past week, the Department of Homeland Security (DHS) began implementing its new public charge rule nationwide. The Department of State (DOS), which published its own version of the new rule, announced it, too, will begin evaluating applications based on the new rule relating to public charge inadmissibility beginning February 24, 2020.

As discussed in previous posts, the new public charge rule redefines the term "likely at any time to become a public charge," which is a ground of inadmissibility found in INA § 212(a)(4). "Public charge" is now defined as a foreign national who receives one or more public benefits "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)."

Under the new rule, adjudicators are instructed to examine the applicant's age, health, family status, financial standing, and education/skills by using a discretionary "totality of the circumstances" test. The new public charge rule also expands the list of designated public benefit programs that can be considered when making a public charge inadmissibility finding.

All applicants for admission to the United States are subject to the new public charge rule, unless exempted. Specifically, individuals applying for adjustment of status in the United States, immigrant and nonimmigrant visa applicants applying at U.S. Consulates abroad, individuals applying for admission at the U.S. border who have been granted immigrant or nonimmigrant visas, nonimmigrants applying for an extension or change of status with USCIS, and lawful permanent residents returning to the United States after an international trip of six months or more who are subject to the public charge ground of inadmissibility will be required to show they are not inadmissible based on the public charge ground.

The new Department of Homeland Security (DHS) public charge regulation will apply to applications postmarked on or after February 24, 2020. The Department of State (DOS) public charge rule will apply to all applications processed beginning February 24, 2020. With respect to public assistance, USCIS will only consider public benefits received on or after that date. Applications for adjustment of status that are already pending with USCIS and those postmarked on or before February 23, 2020 will be adjudicated under criteria that was in effect before the new rule.

USCIS' Form I-944, "Declaration of Self-Sufficiency"

As of February 24, 2020, USCIS requires a new form, the "Declaration of Self-Sufficiency" (Form I-944), to accompany applications for adjustment of status. The Form I-944 requires the applicant to report and submit information about whether the alien applied for, was certified or approved to receive, or received certain non-cash public benefits. The 18-page form is intended to help immigration officers determine whether the applicant is a "public charge" under the new, more expansive criteria outlined above. The form itself and supporting documentation required are extensive and complex.

Applicants will be required to answer questions regarding whether they have ever received or applied for public assistance, and provide information regarding their family status, financial standing, health, and education level and skills. A breakdown of the documentation applicants will be required to provide along with Form I-944 is provided below.

Public Assistance

Applicants are required to provide evidence showing they have received, currently receive, or are currently certified to receive public benefit. If they have disenrolled from public benefits, the applicant will need to produce evidence of such disenrollment. If the applicant does not qualify for public benefits, they will need to provide documentation from the administering agency stating they do not qualify for such public benefit by virtue of their circumstances, such as annual gross household income or immigration status.

Family Status

Applicants are required to provide documentation regarding all household members, such as birth certificates, marriage certificates, and/or affidavits to establish relationships.

Financial Standing

Applicants are required to document their income and liabilities with financial records such as their IRS and/or foreign tax transcripts. Applicants are also required to provide a recent credit report and credit score.

If the applicant's income falls below 125% of the Federal Poverty Guidelines (FPG), they will need to provide documentation of household members' assets and resources in order to overcome this criteria.

Health

USCIS will now request evidence of current or prospective health insurance coverage. Adjudicators will review Form I-693, Report of Medical Examination and Vaccination Record to determine if the applicant has any medical conditions that will affect their ability to work, attend school or care for themselves.

Education and Skills

USCIS will review the applicant's employment history, education level, English language proficiency and whether the applicant has any relevant occupational skills.

DOS' Form DS-5540, Public Charge Questionnaire

The Department of States (DOS) announced that it too would implement its final rule on public charge beginning on February 24, 2020. It recently published changes to the Foreign Affairs Manual (FAM) on public charge and the final version of Form DS-5540, Public Charge Questionnaire. At the U.S. Consulate, all immigrant visa applicants subject to INA § 212(a)(4) must complete and submit a Form DS-5540. All applicants will be evaluated under the new public charge rule irrespective of when the DS-260, Immigrant Visa Application, and accompanying documents were submitted and screened by the National Visa Center and sent to the consular post.

Like Form I-944, the Form DS-5540 requests information regarding the immigrant visa applicant's household size and income, assets, liabilities, education, job skills, health, and receipt of public benefits. While Form DS-5540 in many ways resembles Form I-944, completing Form DS-5540 is not quite as cumbersome. In terms of supporting documentation, the Form DS-5540 only requests the applicant attach evidence of health insurance and tax transcripts. However, the officer may solicit other supporting documentation at the time of the interview, so practitioners and clients should proactively prepare for such requests. Clients should also be prepared for a heightened public charge screening. They should arrive to their interview armed with as much documentation as possible of financial resources, income and assets of all household members, job offers, educational degrees and certificates, job skills and work history, if supportive. Furthermore, although nonimmigrant visa applicants are not required to submit Form DS-5540, consular officers may nevertheless request the applicant submit the form or pose additional questions to the applicant during the interview, deemed necessary to make public charge determination.

Given the recentness of the rule's implementation, it is not yet clear how clients will be impacted. What is certain is that applicants for admission to the United States should work with competent and experienced counsel to proactively address the question of public charge.