News

On February 24, 2020, USCIS announced that most green card applications and several non-immigrant visa applications will be subject to a new Public Charge Rule.

Under the rule, USCIS may conclude that an applicant is inadmissible if it is “more likely than not at any time in the future to become a public charge.”  More specifically, USCIS believes that the applicant will be more likely than not at any time in the future to receive one or more of the enumerated list of public benefits for more than 12 months (aggregate) in a 36-month period.

The decision will be based on the totality of the circumstances, as subjectively determined by an adjudicating officer.  This means the officer will weigh negative and positive factors, including the applicant’s:

• Age
• Health
• Family status
• Assets, resources and financial status
• Education and skills
• Prospective immigration status
• Expected period of admission
• The sufficiency of the petitioner’s Affidavit of Support

Factors that may find in favor of an applicant likely to be a public charge

USCIS listed several factors that will weigh in favor of a public charge finding, including:

• Insufficient Employment History:  The applicant is not a full-time student, and is authorized to work but cannot show: 1) current employment; 2) recent employment history or; 3) a reasonable prospect of future employment.
• Prior Receipt of Public Benefits:  The applicant has received, or has been certified to receive, one or more public benefits for more than 12 months in a 36-month period, on or after February 24, 2020.
• Medical Conditions:  The applicant has a medical condition that is likely to require extensive medical treatment; or that will interfere with their ability to provide for themselves; to attend school; or to work.  Further, the applicant is uninsured and cannot obtain private health insurance, or does not have the financial resources to pay for reasonably foreseeable medical costs related to a medical condition.
• Prior Inadmissibility:  The applicant was previously found to be inadmissible based on public charge grounds.

Factors that may find in favor of an applicant not to be a public charge

USCIS outlined the following factors as weighing heavily against a finding that the applicant would likely become a public charge:

• Household Income and Assets:  The applicant and their household’s income, assets, or resources and support from a sponsor, is at least 250% of the Federal Poverty Guidelines for the alien’s household size.
• Stable Employment:  The applicant is authorized to work and is currently employed in with an income of at  least 250% of the Federal Poverty Guidelines for a household of the alien’s household size.
• Health Insurance:  The applicant has private health insurance appropriate for the expected period of admission, so long they do not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.

With the public charge rule being brand new, it will be difficult for attorneys and clients to determine how USCIS will adjudicate these applications in “real world” scenarios.  Until we start seeing real results from real cases, it’s best to be as prudent and conservative as possible in terms of submitting evidence demonstrating that applicant’s meet the “preponderance” standard in proving that they will not likely be a public charge in the future.