On February 24, 2020 the final Public Charge rule came into effect in the US. This rule will change the way our country processes immigration applications.

What is the New Public Charge Rule?

The government has always subjected Applicants seeking permanent immigration status in the U.S. to a public charge test. Traditionally, this test has consisted of whether the Sponsor (the person petitioning the Applicant for a green card) met the income level requirement in the I-864 Affidavit of Support. If they met the minimum income requirement then it was presumed that the Applicant would not become reliant on government benefits in the future. If the Sponsor did not have sufficient income for the I-864 (or, did not have a joint sponsor) then the Applicant would be found ineligible to receive a green card because they are likely to become a public charge.

A “public charge” is someone who is reliant on  government benefits.

However, the new Public Charge Rule modifies the public charge test a great deal. The new Public Charge Rule still requires the Applicant’s Sponsor to submit a sufficient I-864 Affidavit of Support, but this time, the government also turns an inquiry on to the Applicant themselves, and subjects them to a 7 factor test. Through this 7 factor test, the government will evaluate whether the negative factors outweigh the positive factors under the totality of the circumstances.  If they do, then the government will deny the Applicant’s green card application.

So what is the 7 Factor “Totality of the Circumstances” Test?

The use of public benefits is not the only factor in the government’s Public Charge test.  “The determination of an alien’s likelihood of becoming a public charge at any time in the future … is based on the totality of the alien’s circumstances and by weighing all of the factors that are relevant to the alien’s case.”

In addition to using public benefits, the government considers the applicant’s other qualities, such as their health, age, family status, financial status, education and skills, and expected period of stay. The 7 factor test’s holistic approach is may allow approval of greencards in some cases where the applicant has used public benefits but has otherwise excellent factors.. On the other hand, this process is more subjective and could lead to applicants being deemed a likely “public charge” even if they haven’t used public benefits. 

Either way, it remains to be seen how this test will be applied by officers across the U.S.  We expect the test to be applied differently by different officers, thereby increasing the uncertainty of what used to be a straightforward income test in the journey for a green card.

Does the Public Charge Rule Apply to Me?

The New Public Charge Rule does not apply to the following categories:

  • Green card holders seeking to renew their green card
  • Refugees
  • Asylees
  • Applicants who are seeking or have been granted T (trafficking) nonimmigrant visa status
  • Applicants who are seeking or have been granted U (crime victim) nonimmigrant visa status
  • Certain Violence Against Women Act (VAWA) self-petitioners

If you fall into any of the above categories, your application will likely not be tested for Public Charge and you need not worry about claiming government benefits.

Additionally, if you already have a green card the Public Charge rule does not apply to you. Public Charge testing also does not apply to any of your US citizen children or family members, so if they have taken benefits it will not be included in your calculation.  It’s important to keep in mind that the Public Charge rule is a new immigration policy that is unique to the Trump administration and could be lifted by a new administration in the future.

Lastly, if you are a  Naturalized US Citizen (or US Born Citizens) this does not apply to you at all.

What does this mean for my immigration case?

If you submitted your application to USCIS before February 24, 2020, then you are not subject to the Public Charge Rule and you have nothing to worry about in that regard (assuming your I-864 met the previous requirement already).  Ultimately, we recommend that you speak to an attorney about your case if you are concerned.

If you need assistance with your adjustment of status and more clarification of the Public Charge rule, please contact our office to set up a consultation. We can help. Contact us at 212-248-7907 to schedule an appointment.