Monthly Archives: August 2019

2019 Public Charge Rule: 3 Key Changes Set to Take Effect on October 15

On August 14, the U.S. Department of Homeland Security (DHS) published the Final Rule on the public charge inadmissibility ground, which amends the regulations for section 212(a)(4) of the Immigration & Nationality Act (INA).

Highly controversial and several months in the making, the Final Rule gives U.S. Citizenship & Immigration Services (USCIS) more discretionary power to deny Form I-485, green card requests, and Form I-129 and Form I-539 applications to change status or extend status, on the public charge ground.

The new rule is set to take effect on October 15, 2019, i.e. 60 days after its publication. It will affect applications filed (received by the agency) or postmarked on or after that date.  The U.S. Department of State (DOS) is expected to further revise the Foreign Affairs Manual (FAM) to incorporate DHS’ new public charge rule. 

[UPDATE: On October 11, 2019, federal judges in three separate cases enjoined USCIS from implementing and enforcing the new public charge rule and postponed the effective date of the Final Rule until there is final resolution in the cases. Two of the injunctions are nationwide and prevent USCIS from implementing the rule anywhere in the United States. Until final decisions in these cases are issued or the injunction is lifted, USCIS will continue to apply the existing rule.]


Public Charge Inadmissibility Ground Under Section 212(a)(4)

The long-existing section 212(a)(4)(A) makes a person inadmissible to the U.S. if he or she is “likely at any time to become a public charge.”  Whether a person is barred from the U.S. on public charge ground depends on the totality of the circumstances.

Section 212(a)(4)(B) of the INA instructs USCIS and U.S. consular officers to consider the following factors:

  • Age
  • Health
  • Family status
  • Assets; resources; and financial status
  • Education and skills

The Form I-864, Affidavit of Support, from the petitioner (sponsor) or joint sponsor is also an important factor to consider in certain immigrant visa or green card cases.

The statute does not define “public charge.” But since 1999, USCIS and DOS guidelines have defined it to mean a person who is or is likely to become “primarily dependent” on the U.S. government for subsistence, as shown by the receipt of “public cash assistance for income maintenance” or “institutionalization for long-term care at government expense.”

The 2019 Final Rule involves a new definition of public charge and includes 3 key changes:

1) Expands the range of public benefits that may be considered when determining whether applicants who have received or are currently receiving benefits are inadmissible on public charge ground.

Under the Final Rule, public benefits are no longer limited to mean cash assistance programs, such as Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance. The term “public benefit” has expanded to include previously excluded programs, such as:

  • Federally funded Medicaid (with certain exclusions, e.g. receipt of Medicaid for emergency care; services funded by Medicaid but provided under the Individuals with Disabilities Education Act; school-based services provided to persons who are at or below the oldest age eligible for secondary education as defined by state or local law; Medicaid benefits received by a person under age 21; and Medicaid benefits received by pregnant women and women for up to 60 days after giving birth.)   
  • Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
  • Section 8 Housing Assistance under the Housing Choice Voucher Program 
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) 
  • Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.

2) Creates a single duration-based threshold for the receipt of public benefits as part of the definition of public charge.

The Final Rule notes that an applicant is a public charge if he or she receives one or more public benefits for more than 12 months in the aggregate within any 36-month period. USCIS notes, for example, the receipt of two benefits in one month counts as two months.

The rule applies not only to green card or immigrant visa applicants. It also requires applicants seeking a change or extension of nonimmigrant status to show they have not (since initially obtaining the status) received public benefits for more than 12 months in total in any 36-month period.

Any duration (and amount) of public benefits received may be considered in the totality of the circumstances test.  Adjudications officers will only consider benefits received by the applicants and will not take into account benefits used by their children or other family members.

3) Defines “heavily weighted positive factors” that reduce the likelihood of becoming a public charge and “heavily weighted negative factors” that increase the likelihood of becoming a public charge. 

Among the heavily weighted negative factors is having received or been approved to receive one or more public benefits for more than 12 months in total within the 36-month period prior to applying for admission to the U.S., a green card, or a status change or extension.

Other negative factors include being younger or older than working age; having a health condition that is likely to require extensive treatment and lacking private health insurance or the means to pay medical costs; having limited income or resources; not being employed, a full-time student or a primary caregiver; previously found inadmissible on public charge grounds; and using or previously using public benefit programs.

Heavily weighted positive factors include the applicant’s household has financial assets or resources of at least 250% of the federal poverty level, or the applicant earns an income of at least 250% of the federal poverty level for the household size.

Other positive factors are the applicant is authorized to work, is gainfully employed, and has private health insurance that is not subsidized by the Patient Protection and Affordable Care Act.

The shift toward the weighing of positive factors and negative factors means the Form I-864, Affidavit of Support, can no longer be relied on as sufficient proof – by itself – to demonstrate the applicant would not become a public charge in immigration cases that require the Affidavit of Support.

Introduction of Form I-944, Declaration of Self-Sufficiency

USCIS introduced the new Form I-944, Declaration of Self-Sufficiency, which collects information on the applicant’s family status; assets, resources and financial resources; and education and skills. More information is in the Form I-944 instructions. Both are currently in draft format and not yet published for use.

When the Final Rule goes into effect, it is expected that Form I-485 adjustment of status/green card applicants will need to submit a completed Form I-944 with supporting documents. Applicants requesting a change or extension of status through a Form I-129 or Form I-539 may also have to file a completed Form I-944 if USCIS elects to require one in a Request for Evidence.

Posting of Public Charge Bonds

Section 213 of the INA provides for the posting of a public charge bond in cases where applicants need to demonstrate they will not become a public charge. The Final Rule states that applicants who are initially found likely to become a public charge by the USCIS may be offered the opportunity to post a public charge bond of at least $8,100.

The bond may be terminated only upon the immigrant’s death, permanent departure from the United States, five years as a lawful permanent resident, or naturalization. The bond will be breached if the immigrant receives public benefits for more than 12 months in total within any 36-month period.

Statutory Exemptions Still Apply

Congress exempted certain classes of immigrants from the public charge inadmissibility ground. The Final Rule includes provisions recognizing the classes of individuals who are exempt, e.g. refugees, asylees, widow(er)s of U.S. citizens, VAWA self-petitioners, and Afghans and Iraqis with special immigrant visas.

2019 Final Rule Will Add Complexities

The public charge inadmissibility ground applies to persons requesting admission to the United States as an immigrant or nonimmigrant. It does not apply to permanent residents filing for naturalization (Form N-400) or to conditional permanent residents applying to remove the conditions on their residence (Form I-751).

When possible, persons who are seeking to adjust to permanent resident status or extend or change status should file their applications before the new public charge rule goes into effect.

Applications that are filed (received by the agency) or postmarked on or after October 15 will be subject to the Final Rule, which gives adjudications officers broader discretionary power in determining whether a person is inadmissible on the public charge ground.

The new procedures under the Final Rule are likely to increase processing times, create confusion over eligibility and filing requirements, and add complexities in applications, especially during the initial stages of implementation. 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: QuinceMedia


Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

A U.S. citizen may file a Form I-130 immigrant petition for his or her spouse in the immediate relatives category. If the citizen dies, the widow(er) may still seek permanent residence in the United States under section 201(b)(2)(A)(i) of the Immigration & Nationality Act, when certain conditions are met.

Who Qualifies for Widow(er) Benefits Under INA 201(b)(2)(A)(i)?

U.S. immigration statute permits widow(er)s of U.S. citizens to be classified as immediate relatives and continue the Immigrant Visa or Adjustment to Permanent Resident Status application process if they:

  • Were legally married to a U.S. citizen and not divorced or legally separated from the U.S. citizen at the time of death
  • File a Form I-360 self-petition within two years of the U.S. citizen spouse’s death or have a pending or approved Form I-130 filed by the U.S. citizen spouse prior to death, which will be automatically converted to a Form I-360 petition
  • Show they entered into the marriage in good faith and not solely for immigration benefits
  • Are admissible to the United States
  • Are not remarried before they receive the green card or immigrant visa (NOTE: If there is a remarriage, the applicant may still be able able to pursue section 204(l) relief if he or she was residing in the United States when the petitioner died and continues to reside in the United States).

How to Apply for Widow(er) Benefits

If there is a pending or approved Form I-130 petition, the widow(er) must notify USCIS of the U.S. citizen’s death. The agency will then automatically convert the I-130 to an I-360 self-petition. If there is no pending or approved I-130 at the time of death, the widow(er) must submit the Form I-360 self-petition to USCIS within two years of the U.S. citizen’s death.

Widow(er)s in the United States may file a Form I-485, application to adjustment to permanent resident status, either at the same time the I-360 is filed or after the I-360 is filed, whether it is pending or approved. If an I-485 application was already submitted based on a pending or approved I-130 filed by the deceased spouse, there is no need to file a new one.

A widow(er) who is living abroad may go through the I-360 approval or I-130/I-360 conversion process to apply for an immigrant visa at the U.S. Consulate overseas.

Admissibility Requirement

A Form I-864, Affidavit of Support, is not required for widow(er)s to establish they will not become a public charge under INA § 212(a)(4). A Form I-864W, Request for Exemption for Intended Immigrant’s Affidavit of Support, should be filed with the Immigrant Visa request or Adjustment of Status application.

Widow(ers) are not exempt from the 3/10 year bars to re-entry under INA 212(a)(9)(B)(i) if they accrue more than 180 days of unlawful presence in the U.S. and depart for consular processing of the immigrant visa. The waiver for unlawful presence requires a U.S. citizen or permanent resident spouse or parent, which many widow(ers) do not have. Whenever possible, widow(er)s should apply for Adjustment of Status within the U.S. and avoid triggering the 3/10 year bar.

If there are no significant negative factors, and a previously filed I-130 has been converted and approved as an I-360, USCIS will normally exercise discretion favorably in a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, of a widow(er) who is inadmissible due a prior removal order.

Children of Widow(er) of U.S. Citizen

Unmarried children under the age of 21 may be included in the immigrant petition as derivative beneficiaries. As “immediate relatives,” derivative children qualify for benefits under the Child Status Protection Act (CSPA), which “freezes” their ages as of the filing date of the Form I-130 or Form I-360, whichever is applicable. CSPA protects them from aging out if they turn age 21 prior to their being granted a green card or immigrant visa. Still, they must meet any other eligibility criteria or filing requirements. 

Consult a Qualified U.S. Immigration Attorney

A qualified U.S. immigration attorney can help with verifying your eligibility for widow(er) benefits and submitting a request for I-130 to I-360 conversion or filing a properly documented I-360 self-petition. It’s also important to seek counsel in the Adjustment of Status application within the United States or in the Immigrant Visa request at the U.S. Consulate abroad.

For information on other possible remedies for surviving relatives, read our related articles:

Humanitarian Reinstatement Allows Certain Principal Beneficiaries to Become Permanent Residents Even When Petitioner Has Died

Section 204(l) Allows Certain Surviving Relatives to Become Permanent Residents Even When Petitioner or Principal Beneficiary Has Died

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: mohamed_hassan