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The Trump administration recently announced changes to “public charge” inadmissibility. One of the major changes in U.S. immigration law is that some immigrants will not be required to post financial bonds as a pre-condition to getting green cards.
Here’s what you need to know about public charge bonds.
Who has to post a public charge bond?
Bonds are required from applicants deemed inadmissible on only public charge grounds. Basically, they will be required from immigrants who have not demonstrated adequate proof that they can financially support themselves. DHS also asserts full discretion as to whether or not to invite an applicant to submit a bond. If the applicant has one or more of the heavily weighted negative factors discussed above, that will likely preclude him from receiving an invitation to submit a bond.
How much will public charge bonds be?
Bonds will be at least $8,100. That is marginally less than the $10,000 required by the proposed rule. As, for example, with the Federal Poverty Guidelines, this $8,100 minimum will be adjusted with the Consumer Price Index. The DHS adjudicator will have the discretion to decide what type of bond is required. She will tell the applicant whether DHS requests a surety bond or a cash/cash equivalent.
How does the applicant post the public charge bond?
The public charge bond will be submitted with a new Form I-945, Public Charge Bond, which will have a $25 filing fee. The instructions and content of the I-945 are not yet available. Ominously, the rule asserts that the DHS adjudicator has the authority to require “other condition” on the bond “as appropriate for the alien and the immigration benefit being sought.” Similar to a Form I-864 sponsor, the bond obligor is required to notify DHS if the immigrant changes addresses. Unlike the change-of-address rules for Form I-864 sponsors, there is no financial penalty if a bond obligor fails to timely notify DHS of a change in address.
What is the condition of the public charge bond?
The purpose of the bond is to guard against the immigrant who is receiving prohibited public benefits. The rule provides that the applicant “may not receive public benefits… for more than 12 months in the aggregate within any 36-month period” prior to cancellation of the bond. Hence, receiving public benefits for longer than 12 months would mean that the immigrant meets the definition of having become a public charge and would constitute a breach of the bond conditions.
When can the applicant get her bond back?
The bond remains in effect until the applicant formally requests and obtains the cancellation of the bond. The request to cancel the public charge bond will be made on a new Form I-356, Request for Cancellation of Public Charge Bond, which has a $25 filing fee. The Form I-356 may be filed only once the applicant has,
● Been an LPR for five years;
● Become a U.S. citizen;
● Permanently departed the U.S.;
● Obtained an immigration status not subject to public charge inadmissibility; or
To demonstrate voluntary “permanent departure” from the United States, the immigrant would need to file a Form I-407, Record of Abandonment of Lawful Permanent Resident Status.
The obligor has the burden of demonstrating by a preponderance of the evidence that one of the bond terminating events has occurred. If DHS approves the cancellation request it will release the obligor from liability and return the security.
The rule also allows DHS to cancel the bond, on a discretionary basis, even if neither the obligor nor immigrant has filed a Form I-356. This could mean that DHS will automatically review bonds for cancellation as immigrants reach the 5-year anniversary of their residence status, though it is far from clear that DHS intends to do so.
Additionally, an original obligor or new obligor is permitted to submit a substitute bond. If it is a new obligor who is submitting the substitute bond, she is required to assume all responsibilities of the original obligor. The new obligor also assumes liability for any breach of the bond condition prior to filing the substitute bond. If DHS accepts the substitute bond, it will then cancel the original bond.
What is the interplay between the public charge bond and Affidavit of Support?
Form I-864 sponsors are liable for repaying the cost of any means-tested public benefits received by the immigrant during the sponsorship period. Unlike the public charge bond, I-864 sponsors are responsible for repaying any cost of means-tested benefits – there is no 12-month threshold. Also, the Form I-864 sponsorship period potentially lasts longer than the public charge bond, since five years of residency status is not a terminating event for the Form I-864. All this means that a Form I-864 sponsor who also serves as a bond obligor could face liability on both the bond and also the Form I-864. She could lose her bond if the immigrant received more than 12 months of public benefits, and the government could sue her for the cost of the benefits.
The practical effect is more leverage for the government.
Note that this gives adjudicators extraordinary leverage over families with modest financial means. An adjudicator who is disinclined to grant can determine that an applicant is on just the wrong side of public charge inadmissibility, and then require the applicant to post a substantial bond in order to proceed.