On August 14, 2019, the Department of Homeland Security posted the Final Rule on the new provisions related to public charge. The new rule will apply many people, whether they are filing for an immigration benefit based on employment or a family relationship.
We are still analyzing the rule, which was just published today, so please check back for updates.
When does the rule take effect?
October 15, 2019. The new definition of public charge will not apply to cases that were filed before that date. In addition, DHS will not penalize people who received benefits before October 15
What is a “public charge”?
The term “likely at any time to become a public charge,” has always been is a ground of inadmissibility (a reason to deny an immigration benefit) in the Immigration and nationality Act (INA). Up to now, the term was limited to people who were primarily dependent on cash benefits or in government-funded, long-term institutional care. The type of benefits were limited to Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance, as well as a Medicaid program that covers the institutionalization mentioned above.
What applications are affected by the law?
The “public charge” rule applies to:
How does the new rule change the “public charge” definition?
The new rule makes some very important changes to the analysis of “public charge.”
1. DHS may now consider that someone is a public charge if they are “more likely than not” to receive the listed benefits for more than 12 months total within any 36-month period. A person who gets two benefits in one month is considered to have used two months of benefits. Chillingly, the FAQs on USCIS web page expand this, saying that “…because a public charge inadmissibility determination is prospective in nature, in the totality of the circumstances, any duration (and amount) of public benefits received may be considered in the totality of the circumstances.”
2. DHS has expanded the list of benefits that could disqualify a person. In addition to the benefits already counted, DHS will consider:
Benefits that will not be counted are:
Benefits received by the applicant’s U.S. citizens children or other family members are not considered unless the foreign national is also listed as a recipient.
3. The rule gives officers broad discretion to consider additional factors in determining whether a foreign national is likely to become a public charge. These factors include age, health, family status, assets/resources/financial status, and education/skills. Other factors that DHS will consider include the foreign national’s prospective immigration status and expected period of stay (immigrant or non-immigrant).
How can these discretionary factors be viewed?
The following factors will generally weigh heavily in favor of a finding that a foreign national is likely at any time to become a public charge:
The following factors would weigh heavily against a finding that a foreign national is likely to become a public charge:
Is anyone exempt from the rule?
Yes. The public charge rule does not apply to:
What if I am deemed to be likely to be a “public charge”?
Foreign nationals may be able to post a public charge bond of at least $8,100 to avoid a public charge determination. The bond may be cancelled only upon the immigrant’s death, permanent departure, five years as a lawful permanent resident, or naturalization. The bond will be considered breached if the immigrant receives any of the cash or non-cash programs identified above for more than 12 months in the aggregate within any 36-month period.
The draft bond form I-945 is here and instructions are here.
I filed an Affidavit of Support – doesn’t that help?
It does help. It is one of many factors that DHS will consider. The likelihood that the sponsor on the I-864 will really be able to support the foreign national is important.
Does Obamacare count as a benefit?
Yes and no. DHS says that it won’t consider subsidies under the Affordable Care Act as public benefits, BUT private health insurance is one of the “heavily-weighted positive factors.” In other words, you won’t be penalized for using Obamacare subsidies, but it you had health insurance without them, it would be better.
Are there any new forms?
All applicants for Adjustment of Status (employment and family cases) will need to complete a Form I-944, Declaration of Self-Suffiency. USCIS has discretion to ask non-immigrant beneficiaries to also complete this where necessary.
The Form I-944 collects information such as age; health; family status; assets, resources and financial status; and education and skills. DHS estimates that it will take applicants 4.5 hours to complete this.
Draft Form I-944
Form 944 instructions
What should I do now?
If you are considering filing any petition or application with immigration, do it now, before October 15. If you can’t file before October 15, analyze any benefits that you are receiving to see if they are listed above.
For any questions about the new rule, how it might affect you, and how you can file applications before the rule takes effect, please contact immigration attorney Elaine Martin.
President Trump has approved a memorandum that would enforce the obligations of sponsors to reimburse the government when immigrants receive means-tested public benefits.
As part of the permanent residence process for family-based immigrants, a US resident signs an I-864 Affidavit of Support. The sponsor accepts legal responsibility for financially supporting this foreign national. This legally enforceable responsibility lasts until the foreign national becomes a U.S. citizen or can be credited with 40 quarters of work (usually 10 years), even if the relationship (e.g. marriage) ends before that time.
In most cases, the Affidavit is completed only by the US family member that is petitioning for the foreign national (e.g. a US citizen woman bringing her foreign spouse to the US). In some cases, the petitioner's income is not enough for her to act as sponsor, however, so a joint sponsor is needed. Fore more information about Affidavits of Support, see here.
The Affidavit of Support has been required since 1997, pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Section 213A of the Immigration and Nationality Act requires that any government or non-government entity that provides a means-tested public benefit to a sponsored alien shall request reimbursement from the sponsor in an amount equal to the unreimbursed cost of such benefit.
In reality, this reimbursement provision has rarely been enforced, although it is a significant responsibility that sponsors should be very aware of. In my practice, I have always insisted on counselling the sponsor about the importance of the Affidavit and the obligations under it, even though I have never seen it enforced.
White House statement.
US Citizenship and Immigration Services (USCIS) has issued a new version of Form I-864P. This form is used to help green card applicants determine whether they or the "sponsoring" relative meets the income requirements for the Affidavit of Support. The sponsor must meet certain income requirements: they must show that their household income is equal to or higher than 125% of the US poverty level for the household size.
The US poverty guidelines change annually, and are lower for Alaska and Hawaii than for the other 48 states. For example, the poverty guidelines for a household of 4 for the lower 48 is now $24,300. In Alaska, the figure is $30,380 and Hawaii is $27,950. Remembering that the US citizen sponsor needs to show 125% of the poverty guidelines on the Affidavit of Support, the income therefore needs to exceed $30375 (lower 48 states), $37,975 (Alaska) and $34,937 (Hawaii).
For more details about the Affidavit of Support, see here.
This is the second in an occasional series of blog postings that answer questions on some of the most confusing aspects of immigration processing. You can find links to the other posts here.
Many permanent residence (green card) categories require the beneficiary to have an Affidavit of Support in place before the petition will be approved. The Affidavit of Support and related regulations are complex and are therefore difficult for a lay person to understand. I understand the confusion that many people feel about the I-864, so I hope these FAQs help.
1. What is an Affidavit of Support and when do I need one?
The US government requires petitioners in family-based permanent residence cases to complete and file an Affidavit of Support on connection with the sponsored immigrant. If you are bringing a relative to live permanently in the United States, you must accept legal responsibility for financially supporting this family member. You accept this responsibility and become your relative's sponsor by completing and signing a document called an Affidavit of Support (Form I-864). This legally enforceable responsibility lasts until your relative becomes a U.S. citizen or can be credited with 40 quarters of work (usually 10 years), even if the relationship (e.g. marriage) ends before that time.
2. Do all immigrants need an Affidavit of Support?
No, the following immigrants do not need an I-864:
- Self-petitioning widows or widowers or battered spouses and children (petitioning on a Form I-360).
- Relatives who enter as refugees or asylees.
- People who have worked for 40 qualifying quarters (as defined in Title II of the Social Security Act), or who can be credited with 40 qualifying quarters (e.g. through a family member).
- Children who can automatically acquire citizenship through a parent.
3. What are the income requirements for an Affidavit of Support?
The sponsor must meet certain income requirements: you must show that your household income is equal to or higher than 125% of the US poverty level for your household size. The poverty guidelines change annually and are on this website. If the sponsor is on active duty in the Armed Forces of the United States, and the immigrant she is sponsoring is her spouse or child, the income only needs to equal 100 percent of the U.S. poverty level for the family size.
4. What is “household size?
The household size includes the sponsor, your dependents, any relatives living with you, and the immigrants you are sponsoring. For example, if you have a spouse and two children and you want want to sponsor your brother and his wife, you must prove that your household income is equal to or higher than 125% of the US poverty level for a family of six. You must also include in your household size any immigrants you have previously sponsored under this part of the law (who are not yet naturalized citizens).
5. Who can be a sponsor?
If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a lawful permanent resident. You must be domiciled in the US. Usually, this means that you must actually live in the US, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, so that you still have your domicile in the United States.
6. What if a sponsor can’t meet the income requirements?
If you cannot show income of 125% of the poverty guidelines, you can opt for one of the following alternatives:
(a) Show that you have assets worth at least 5 times the difference between your income and the 125% of the poverty guidelines. For example, if 125% is $30,000, and your income is $20,000, you need to show assets worth $50,000, i.e. 5 x $10,000.
(b) Count the income and assets of members of your household who are at least 18 years old and are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent Federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract between Sponsor and Household Member.
(c) Use the income and/or assets of the immigrants you are sponsoring, if you have listed them as dependents on your most recent Federal tax return or they have lived with you for the last 6 months. If the immigrant(s) meets these criteria, you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.
7. Where can I find more information?
For further details about the Affidavit of Support obligations, please see the following links:
USCIS Affidavit of Support page
Department of State FAQs
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.