FAQs on Form I-944 and Public Charge Rule

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When does the new rule take effect?

The new I-944 rule applies to Adjustment of Status applications postmarked on or after February 24, 2020. Permanent residence (green card) applicants who are being interviewed at a consular post outside the US will need to use Form DS-5540. However, this form may not be needed for foreign nationals who sent their documents to NVC before February 24, 2020.

What is DHS looking for?

DHS (US Department of Homeland Security) is trying to figure out whether someone is "likely at any time to become a public charge”, and therefore is inadmissible. If DHS decides that the foreign national is "more likely than not, at any time in the future, to receive one or more of the [listed] public benefits..... for more than 12 months, in total, within any 36-month period", they can be denied.

Who is affected by the public charge rule?

Apart from the categories that are exempt (below), and people who got permanent residence before February 24, 2020, most people are affected. The public charge ground of inadmissibility applies to people who are:

• Applying for permanent residence or temporary (nonimmigrant) visas at a consulate;
• Applying to enter the US (at land border or airport) on immigrant or nonimmigrant visas; and 
• Applying for Adjustment of Status within the US.  

What about people doing an extension or change of status in the US?

DHS (US Department of Homeland Security) has revised this provision and no longer considers the future likelihood of public benefits. Instead, DHS will only consider whether the foreign national has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they wish to extend or change, up until the time of adjudication of the extension of stay or change of status request.

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Who needs to file an I-944?

​Most foreign nationals who are filing I-485, Adjustment of Status, applications will need the Form I-944. This includes foreign nationals who are filing in an employment-based category. All derivative family members (spouses and children) will also need an I-944 EACH.

Who is exempt from the public charge rule?

People applying the the following categories are exempt from the public charge analysis and therefore do NOT need to file an I-944:

1. VAWA self-petitioner;
2. Special Immigrant Juvenile;
3. Certain Afghan or Iraqi national;
4. Asylee or Refugee;
5. U Nonimmigrant;
6. Victim of human trafficking (T nonimmigrant);
7. Cuban Adjustment Act, including CAA for battered spouses and children;
8. Dependent under the Haitian Refugee Immigrant Fairness Act, including HRIFA for battered spouses and children;
9. Lautenberg Parolee;
10. Under the Indochinese Parole Adjustment Act of 2000;
11. Based on continuous residence in the United States since before January 1, 1972 (“Registry”);
12. Amerasian Homecoming Act;
13. Polish or Hungarian Parolee; 
14. NACARA applicants;
15. Certain American Indians born in Canada;
16. Spouse, child, or parent of a deceased soldier under the National Defense Authorization Act (NDAA).

Who do I count in my "household"?

If you are over 21 (or under 21 and married), the following people are part of your household:

1. You;
2. Your spouse, if physically residing with you;
3. Your children (under the age of 21 and unmarried) living with you;
4. Other children (under 21 and unmarried) not living with you, where you are legally obliged to pay 50% of their financial support;
5. Anyone else (including a spouse not living with you), if they are listed as a dependent on your tax return OR you provide 50% of their financial support;
6. Any person who provides to you at least 50% of your financial support, or who lists you as a dependent on his or her federal income tax return.

If you are under 21 and unmarried, the following people are part of your household:

1. You;
2. Your children living with with you;
3. Other children (under 21 and unmarried) not living with you, where you are legally obliged to pay 50% of their financial support;
4. Your parents, legal guardians, or anyone else who provides (or is required to provide) at least 50% of your financial support;
5. Any other children of your parents or legal guardians, who live with you;
6. Any other children of your parents or legal guardians, who don't live with you but for whom the adult is 50% financially responsible;
7. Anyone else to whom your parents or legal guardians provide, or are required to provide, at least 50% financial support or who is listed as a dependent on that adult's tax return.​

Do I still need an Affidavit of Support, as well as the I-944?

Yes. The I-864 (Affidavit of Support) is just one of the factors that USCIS will consider in analyzing whether you are likely to be a public charge.

What factors does DHS consider in making the public charge analysis?

• Age; 
• Health; 
• Family status; 
• Assets, resources, and financial status; 
• Education and skills; 
• Prospective immigration status; 
• Expected period of admission; and  
• Affidavit of Support.

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For more information, see additional blog postings and/or call Elaine Martin.  Because the I-944, DS-5540 and new public charge analysis are  all very new and nobody has seen how DHS and the Department of State will interpret any of the forms, information, documents, etc, this is an evolving area. Elaine Martin is monitoring news very closely and will update this blog as often as possible.
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YouTube videos on Public Charge:
 https://www.youtube.com/watch?v=CJA5AhhxtO4&list=PLIT73hW8KmjDBJGTUOs5SJi1WY0nsY4r6
https://www.uscis.gov/greencard/public-charge
https://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet
Form I-944