New Rules for Determining “Public Charge” Take Effect February 24, 2020

Following the recent U.S. Supreme Court order (5-4), USCIS has updated certain forms to incorporate the new rules for determining whether an individual is at risk of becoming a “public charge.”  These new forms take effect on February 24, 2020. Prior versions of the relevant forms will be rejected on or after February 24, 2020. 

USCIS also has released a new 18-page form, Form I-944, Declaration of Self-Sufficiency, that all applicants for permanent residence will need to submit with their Form I-485, Application to Adjust Status to Permanent Residence, effective February 24, 2020.  

In general, a “public charge” is an individual who requires financial assistance from the state to meet basic needs, such as food, housing, and healthcare.  Under the immigration statute, a foreign national who is likely to become a public charge is not admissible to the United States. USCIS now has a new set of rules for how to determine whether someone is likely to become a public charge, which ultimately rests on a “totality of circumstances.” The new Form I-944, recently released by USCIS, seeks a comprehensive view of an applicant’s financial, emotional, and physical well-being.  It asks for detailed information on the applicant’s assets, debts (including mortgages, car loans, and credit card loans), history of filing bankruptcy, and credit score. In this regard, applicants will need to provide a credit report with the Form I-944. It also asks about health insurance coverage, treatment for mental health issues, and previous reliance on public benefits. 

In addition to a broad inquiry of an applicant’s financial status, the Form I-944 asks about a person’s educational and employment history, and knowledge of English.  If a person is retired, the Form wants to understand for how long. If a person does not work, the Form asks if the reason is because s/he is the primary caregiver for a dependent person in his or her household. 

The contents of the application will be reviewed during a person’s interview for permanent residence with USCIS, and the officer will make a determination based on a totality of circumstances (some factors, such as a history of using public benefits, weigh more heavily than others).  Individuals applying for permanent residence at US Consulates abroad will not have to complete the Form I-944, although the State Department is preparing its own version of Form I-944 to determine a person’s likelihood of becoming a public charge. 

For individuals seeking to change or extend their temporary visa status, the Form I-944 does not apply, but the updated forms ask about the applicants’ history of obtaining public benefits. 

The new rules and forms clearly show the government’s preference for skilled employment-based immigration and will hurt family-based immigration.  Although the Supreme Court order allowed these new rules to take effect, litigation substantively challenging the rules continues in federal courts.  In the meantime, we now have a “wealth test” for foreign nationals seeking to live in the United States.   

This alert is for informational purposes only.  Please contact us if you would like to discuss this development further.