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:
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.
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:
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:
If you are under 21 and unmarried, the following people are part of your household:
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?
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.
YouTube videos on Public Charge:
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.