Public Charge Rule To Take Effect October 15, 2019, Creates Uncertainty for Applicants

Immigration officers can deny a Green Card or other visa if they determine that the applicant is "likely to become a public charge." The new rule published August 14, 2019 will be effective October 15, 2019, unless lawsuits already filed stop its implementation.

One current issue is that USCIS has still not finalized the forms required for applications postmarked on or after October 15, 2019. One such Form is the Form I-944, Declaration of Self-Sufficiency, which has to be filed with most applications for family-based Adjustment of Status cases. The draft form is 19 pages and requires detailed information about the household income, assets, resources and financial status. The purpose of the form is to enable Immigration Officers to determine whether an applicant would be inadmissible under the public charge ground. USCIS estimated that an applicant would need 4 to 4.5 hours to complete the form. It is similar to mortgage and financial disclosure forms.

Other relevant forms such as the I-539, I-864 and I-129 are also in the process of being updated but are not yet finalized. The USCIS website states that they will not accept current versions of the Forms if postmarked on or after October 15, 2019.

By way of background, Immigration officers are required to examine if the applicant is likely "at any time" to become a public charge by using a new multi-factor test.

Specifically, the rule affects applicants who could be deemed "inadmissible" by determining whether they are "more likely than not at any time in the future" – a forward looking test – to become a public charge. These persons include: adjustment of status applicants, nonimmigrants being inspected for admission to the United States at a port of entry (POE); persons with an immigrant visa at a POE; lawful permanent residents (LPRs) returning to the United States after six months or more; and persons who are seeking admission after entering without inspection.

For nonimmigrants seeking either a change or extension of status, USCIS will be looking at whether the beneficiary received in the past – a backward looking test – one or more public benefits, as defined in the regulation "for more than 12 months in the aggregate within any 36-month period" before USCIS adjudicates the change or extension of status request.

The rule defines "public charge" and "public benefit" by using a totality of circumstances approach for making a public charge inadmissibility determination that weighs the foreign national’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. Some factors will be more heavily weighed than others.

The list of relevant public benefits included items such as SSI and the new rule will include Medicaid (with certain exceptions); Public Housing; and Food Stamps.

The new Public Charge provisions do not apply to US Citizens. Also exempt are other groups such as Refugees, Asylum applicants, T and U visa applicants.

Implementation of the rule is creating a lot of uncertainty and could result in significantly higher USCIS denial rates for 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.