A version of this article first appeared in the Side Bar journal for the Litigation…
*This article is now outdated*
After this article was published, USCIS formally announced new rules for public charge determinations. Find an updated article about those changes here.
USCIS is considering major changes to how it makes “public charge” determinations. The scope of these potential changes, while not yet official, is evident from drafts of federal regulations that were leaked in April 2018.
U.S. law has long required that immigrants demonstrate that they have adequate financial support – that is, that they not be likely to become a drain on public resource. Yet in family-based immigration cases the focus has traditionally been on the U.S. citizen petitioner. The petitioner – and, if needed, an additional U.S. citizen or resident – files a Form I-864, Affidavit of Support, guaranteeing to provide a financial safety net for the new immigrant. Where the Form I-864 is properly filed and the petitioner’s income is adequate, that historically resolved the issue of “public charge” inadmissibility.
Not any more.
USCIS will now assert the authority to look far beyond the Affidavit of Support to determine whether an immigrant is likely to be self-sufficient. Essentially, the focus now shifts from U.S. petitioner and the Affidavit of Support and over to the intending immigrant. The Affidavit of Support is still required, but it’s basically only the starting point.
The main changes to “public charge” rules.
1 – “Public charge” = likely to receive “public benefits” as newly defined.
USCIS has created a new definition of “public charge,” which is now means a person who is likely to receive “public benefits.” In turn, USCIS has vastly broadened the definition of programs that qualify as “public benefits” for this purpose.
A public charge means an alien who uses or receives one or more public benefits as defined in paragraph (d) of this section. An alien inadmissible based on the public charge ground means an alien who is likely at any time to use or receive one or more public benefits.
Proposed rules, pg. 204 (proposed as 8 C.F.R. § 212.21(a)).
Before panicking, note that these changes will apply only to those accepting these benefits in the future – from the date these rules become final. In other words, an immigrant would not be penalized for previously accepting these benefits.
The following programs now qualify as “public benefits:”
- State/local “general assistance” (cash payments);
- Medicaid (except for emergency Medicaid).
- “Government subsidized healthcare,” including under the ACA (“Obamacare“);
- SNAP/Food Stamps;
- Special Supplemental Nutrition Program for Women, Infants, and Children.State Children’s Health Insurance Program (CHIP, SCHIP);
- Federally-funded housing assistance.
- Means-tested energy benefits such as the Low Income Home Energy Assistance Program (LIHEAP);
- Institutionalization for both long-term and short-term care at government expense;
- Refundable income tax credits including the earned income tax credit when a refund was issued (but other, non-refundable tax credits are not included in this rule);
- “Any other Federal public benefits for purposes of maintaining the applicant’s income, such as public cash assistance for income maintenance.”
Programs not qualifying as public benefits include:
- Public education;
- Federal Old-Age, Survivors, and Disability Insurance benefits;
- Veteran’s benefits;
- Government pension benefits;
- Government employee health insurance;
- Government employee transportation benefits;
- Unemployment benefits;
- Worker’s compensation;
- Medicare benefits, unless the premiums are partially or fully paid by a government agency; and
- State disability insurance.
Also, USCIS will consider the immigrant’s household size. In short, the agency finds that larger households are more likely to receive public benefits than smaller ones. Households of five or more are especially suspect under the proposed rules. For purpose of these determinations, “dependents” means:
(i) A person listed as a dependent on the alien’s most recent tax return;
(ii) Any other person whom the alien is legally required to support; or
(iii) Any other person who lives with the alien, and who is being cared for or provided for by the alien, and benefits from but does not contribute to the alien’s income or financial resources, to the extent such person is not claimed on the alien’s tax return.
Proposed rules, pg. 204 (proposed as 8 C.F.R. § 212.21(b)).
There is a “de minimis” exception for families who receive only limited benefits under one of the qualifying programs:
DHS proposes to exclude public benefits received where the total annual value in any 1 year does not exceed 3 percent of the total FPG threshold based on the household size. For example, for a family of four, this amount (based on 2018 FPL) would equal to approximately $753 annually or approximately $63 monthly.
Proposed rules, pg. 108
2 – Totality of circumstance test and heavily-weighted factors.
USCIS will now look far beyond valid Affidavits of Support to consider the “totality of circumstances” as to whether an individual is likely to become a public charge. The basic factors to be considered are in the statute itself: age; health; family status; assets, resources, and financial status; education and skills; and any other relevant considerations. But USCIS has new interpretations of these factors, most importantly specific “heavily weighted” considerations.
- Unemployment. If USCIS determines that a work-capable applicant is “authorized to work, but is unable to demonstrate current employment, and has no employment history or no reasonable
prospect of future employment. An exception would be, for instance, if the individual was wealthy enough not to need to work.
- Receipt of public benefits in past 3 years. Public benefits are those programs listed above.
- Any medical condition without unsubsiduzed healthcare. This could be any Class A or Class B condition identified in the medical examination.
- Previous public charge finding.
USCIS also identifies heavily-weighted positive factors that would militate in favor of overcoming public charge concerns.
(i) The alien has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines; [or](ii) The alien is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines…
Proposed rules, pg. 209
Obviously the clearest case will be where the intending immigrant has U.S. -based income at or above 125% FPG. But how should we interpret use of the word “support” in the first subsection above. Since the term is different from “assets” or “resources” it seems reasonable to interpret it to mean support from a Form I-864 sponsor. So would it constitute a “heavily weighted” positive factor if a sponsor’s income was at/above 125% FPG?
USCIS will promulgate a new form, the Form I-944, for use in public charge determinations. It will collect information used to assess the factors above. For what it’s worth, USCIS believes the I-944 will be easier to complete than the Form I-864 (taking 4.5 versus 6 hours).
3 – Public charge surety bonds.
The immigration agencies have long had the authority to require immigrants to post bonds to overcome public charge inadmissibility. Basically, if the agency believes a person may not have the ability to be self-sufficient she may be required to pay for a bond to serve as a security. Historically these have virtually never been required. The proposed regulations suggest that USCIS may become more likely to require surety bonds. Back in 1996, Congress looked to the Form I-864 as a way to create a legally binding way to ensure that visa petitioners would serve as the safety net for new immigrants. Basically, it looks like USCIS is now looking to rely on surety bonds as a different way to provide that safeguard.
Bond amounts will be a minimum of $10,000 and top out at about $23,000. An immigrant will have to get permission from USCIS to submit a bond and USCIS claims there will be no ability to appeal the bond amount. A new Form I-945 will be used for this purpose. The bond remains in effect until the immigrant naturalizes, permanently departs the United States, or dies, or until the bond is substituted with another bond.
4 – Other developments.
- Elimination of the Form I-864W. The Form I-864W is currently used for immigrants who are exempt from the requirement of filing a Form I-864. USCIS proposes to eliminate the Form I-864W and use information on the Form I-485 to determine if an applicant is exempt from the I-864 requirement.
- Change of status, extension now examined. Applicants to change their non-immigrant (temporary) status or extend a non-immigrant status will now be screened for public charge inadmissibility.
- Removal procedures. The draft rules show that USCIS is in consultation with DOJ about rule relating to the treatment of applicants found to be inadmissible on public charge grounds. Given the removal priority memoranda, it is likely that USCIS will formalize rules for referring individuals to ICE after they are determined to be inadmissible on public charge grounds.