Finding your Rhythm: When to Do What – Step 1 (Know Your Chronotype)

To do focused work, generate ideas, respond to inquiries, and make decisions, you need to consider that not all times of the day are created equal. Biologically speaking, your concentration, energy and mood levels vary by the hour. Thus, the question of when you will work on a specific project is just as important as what steps you will take and how you will execute them to produce the desired results.

It is counter-productive to use your peak hours to deal with busy work instead of matters that require high-cognitive abilities or creative thinking. Yet like many other overwhelmed professionals, lawyers often fall into this trap. Despite putting in more time and neglecting to take restorative breaks, they often end their day with minor tasks done, but with no significant progress toward reaching their critical goals. While they might have replied to many emails and attended multiple meetings, the time-sensitive client matter is left untouched and the brilliant marketing idea is stuck on the some-day list.

Working out of synch with your natural rhythm often leads to emotional overwhelm, mental depletion, physical exhaustion and increased distractibility.  These factors impair your acquisition of knowledge and skills, fuel procrastination, and make it more difficult to convey bad news or timely communicate with clients. Ethical missteps are more likely to occur when you do not take your internal body clock into account.  

What is Your Circadian Rhythm?

Your circadian rhythm is an internal timing device that controls when you are most alert and when you are most tired. It is your brain’s sleep-wake cycle in a 24-hour period that determines your natural wake up time and bedtime. A group of about 20,000 nerve cells (neurons) – referred to as the suprachiasmatic nucleus (SCN) in the hypothalamus part of the brain (behind your eyes) – affects the secretion of hormones, like cortisol (which triggers your body to wake up) and melatonin (which tells your body to go to sleep), as well as your body temperature and blood pressure.  

What is Your Sleep Chronotype?

Your sleep chronotype is the behavioral manifestation of your circadian rhythm. It is genetically set and is linked to your Period 3 (PER3) or “clock” gene. In the field of chronobiology, Early Birds tend to have a longer version of the PER3 gene than Night Owls. They need more sleep and wake up and go to bed earlier.

4 Chronotype Classifications (Animals)

Dr. Michael J. Breus — a clinical psychologist with a  specialty in sleep disorders – notes there are four chronotype categories of sleep patterns and circadian rhythms. In his book, The Power of When, he distinguishes the chronotypes based on morning and evening preferences, and classifies them according to different animals whose sleep habits best reflect the characteristics.

Chronotypes are general guidelines for large populations; there are individual variations within each chronotype. Although you are genetically predisposed to a certain chronotype in adulthood (age 21 to 65),  this may change as you age, especially at 65 or older. In addition, workplace demands, social obligations, cultural norms and other external factors may require you to shift or reset your circadian rhythm.

The four chronotypes, as defined by Dr. Breus, are:

Lion (morning type, like the Early Bird)

  • 15% to 20% of population
  • Medium sleep drive (7 hours), naturally wake up before dawn
  • Wake up with lots of energy, with their peak energy in the early morning and morning, and little energy to spare in the evening
  • Adapt best to a 6 am wake up time & 10:10 pm bedtime for traditional office hours
  • Tend to be optimists, overactive achievers and go-getters,  and leaders, managers and CEOs
  • Have leadership qualities with introversion preference

Wolf (nighttime type, like the Night Owl)

  • 15% to 20% of population
  • Medium sleep drive (7 hours), naturally wake up late after mid-morning
  • Wake up with serious morning grogginess, with their peak energy in the middle of the day and evening
  • Adapt best to 7 am wake up time and 12 am bedtime for traditional office hours
  • Tend to be creative, pessimistic, risk-seeking and moody; often seen as lazy due to their being out of sych with society’s schedule
  • Are comfortable being alone or often socially introverted, but love a good party

Bear (middle of the road type)

  • 50% to 55% of population (often hybrids who lean toward being a Lion or a Wolf)
  • High sleep drive (8 hours), often hit the snooze button and wish they could stay in bed longer
  • Deep sleepers who like to rise with the sun and keep a solar schedule
  • Wake up in a haze, with their peak energy in the morning to mid-morning
  • Adapt best to a 7 am wake up time & 11:10 pm bedtime for traditional office hours
  • Tend to be fun, friendly and easy to talk to and have good people skills
  • Are team players and worker bees

Dolphin (difficult sleeper)

  • 10% of the population
  • Low sleep drive (6 hours), even though they often crave longer bouts of sleep
  • Light sleepers (often diagnosed or self-diagnosed as insomniacs who keep erratic sleep schedules and have trouble falling asleep and staying asleep)
  • Wake up feeling unrefreshed, with their peak energy in the mid-morning to early afternoon
  • Adapt best to a 6:30 am wake up time & 11:50 pm bedtime for traditional office hours
  • Tend to be anxious, irritable, and highly intelligent with Type A personality, including detail-oriented and perfectionistic
  • Prefer to work solo than in groups

Three Chronotype Classifications (Birds)

In his book, When: The Scientific Secrets of Perfect Timing, author Daniel Pink points out there is a strong biological underpinning for whether you are sharpest in the morning or in the evening. He describes the three chronotypes as:

Lark (morning person)

  • 15% to 20% of the population
  • Naturally wake up very early and go to bed very early
  • Wear out by the evening
  • Peak energy in the early morning

Owl (evening person)

  • 15% to 20% of the population
  • Naturally wake up late and go to bed late
  • Sluggish in the morning
  • Peak energy in the late afternoon and early evening

Third Bird (intermediate person)

  • 66% or 2/3 of population
  • Naturally wake up early and go to bed early
  • Peak in the early to mid-morning

Larks and owls are at two ends of the spectrum. Their melatonin and cortisol levels rise and fall at different times in the 24-hour cycle. For example, melatonin is still high for night owls if they wake at 6 to 7 am, while it dips for larks before that time.  

How to Find Out Your Chronotype

Paying attention to your own natural rhythm is important to know when you are at your peak each day. The ideal time to wake up, go to bed, and perform certain activities depends on your chronotype, i.e. whether you are a morning person, an evening person, or in between.

Here are four ways to find out your chronotype:

Take Power of When Quiz, created by Dr. Breus. Currently available at powerofwhenquiz.com, this is a short questionnaire that takes about two minutes to complete and provides a personalized choronotype.  By answering questions on your sleep drive, sleep timing and preference, you will learn whether you are a Lion, Dolphin, Bear or Wolf and how your chronotype impacts your daily life.

Calculate Midpoint of Sleep, as outlined in Pink’s book. On a free day, when you have no appointments, meetings or time-sensitive obligations (and are not sleep-deprived), when do you naturally go to sleep and wake up? What is the midpoint of your sleep cycle? For example, if you go to bed at 12 am and wake at 8 am, your midpoint is 4 am. If your midpoint is 3:30 am or earlier, you are a Lark. If it is 5:30 am or later, you are an Owl. If you midpoint is somewhere in the middle, you are a Third Bird.

Track your energy level every hour and note how you feel on a scale of 1 to 10. Also note the task or activity and the time of day. A 10 is when you are at your sharpest, fully present, and can more easily get into a flow state. The lower the score, the more you feel drained, scattered, and open to distractions. Chart your scores over time for a week or two. Look for patterns related to when you are hitting 10s, 1s and in between.

Complete scientifically verified survey, such as the Horne Östberg questionnaire, and Munich Chronotype questionnaire, which contains Likert-scale questions to assess your preferences in sleep and waking times, and the degree to which you are active and alert at certain times of the day.

Match Your Chronotype with the Task and Time of Day

The rises and dips in your circadian rhythm trigger changes in your mental alertness, emotional states and behaviors throughout the day. In addition to knowing your chronotype, you also need to sort your work into three types of categories: (1) analytic work that requires heads-down focus, (2) insight work that is open to possibilities, and (3) administrative work that is more routine.

You will produce the best results with the most ease if you do cognitively demanding tasks when you are at your peak (mornings for most people) and creative tasks when your mood boosts back up (early evening for most people). Save your busy work for when you are least productive, which is usually after lunch in the early afternoon, for most people.

* * *

For more information on how to match your chronotype with the task and time of day for peak performance, read the related article,  Finding Your Rhythm: When to Do What – Step 2 (Match Your Chronotype with the Task and Time of Day.

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This article provides general information only. Do not consider it as specific advice for any individual case or situation.  

Dyan Williams is a solo lawyer who practices U.S. Immigration Law and Legal Ethics. She is also a productivity coach for lawyers, consultants and other professionals who seek to reduce overwhelm and make time for what truly matters.  She is the author of The Incrementalist: A Simple Productivity System to Create Big Results in Small Steps, an e-book at http://leanpub.com/incrementalist.

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Saying thanks and celebrating 5th year anniversary

As we approach Thanksgiving Day in the United States, I say thank you for your audience, referrals and, most of all, trusting Dyan Williams Law PLLC to help you solve your, your friend or your family member’s U.S. immigration problem.

Over the past five years — since I started my solo law practice on October 20, 2014 — I have focused on client matters that involve proving the bona fide nature of a marriage and overcoming marriage fraud findings in immigration matters; obtaining waivers for unlawful presence, fraud/misrepresentation and immigration violations; challenging expedited removal orders and visa refusals; and getting difficult naturalization cases approved. 

When I opened the virtual doors of the firm and launched its website at dyanwilliamslaw.com, I set no grandiose plans to hit a target revenue or grow my client list to a point where a physical office, a full-time staff and all the other benefits of a traditional firm would emerge. 

I had already worked at two other firms, with the last eight years as a senior managing attorney. I sought to create a law practice that would not only provide a minimum viable income, but also greater flexibility and increased autonomy to choose carefully and not feel rushed all the time.  

Instead of looking at what other firms were doing, I decided to stay in alignment with my own values and vision. This means taking on only certain types of U.S. immigration matters where I have the deepest knowledge, expertise and interest to give the most beneficial advice and counsel. I do not spread myself too thin or become frazzled by accepting every single client opportunity, with each carrying tremendous responsibilities and weighty obligations.

While it’s more common for lawyers to say yes to a new client matter, my default state is to say no. I offer representation only after I have determined that the case will make the best use of my skills, time, energy, focus and resources — and the potential client is talking to the best counsel for his or her problem.

Knowing how to use the right tools to repair and rebuild the client’s situation is key. If there are no available tools (e.g. existing laws, regulations, policies), I tell the person in a straightforward way and often point out possible steps to a future remedy.

When I am asked about the chance of success, I do not respond with a percentage, which is arbitrary. I simply say that my offering representation reflects that I will help prepare an approvable case, no matter the obstacles and complexities. While there is no guarantee of success, the inputs are controlled and the standards are upheld to maximize the probability of a favorable outcome.  

In the first week of business in October 2014, I took on two new clients with one applying for naturalization and the other seeking a marriage-based green card. (They were among my first success stories.) The first article, Fraud, Lies, and USCIS: Pitfalls in Naturalization, was published on our blog, The Legal Immigrant, 11 days later. 

The number of subscribers to the blog and number of clients at my firm have grown considerably over the years. My emphasis is the same: producing high-quality work consistently and deliberately with the goal of creating valuable results for each client. To learn more, read my article on my other blog, Staying Solo Successfully

Be sure to also check out two of my latest success stories on the approval of problematic I-751 petitions:

Well-Documented Form I-751 Petition (After Divorce) + Full Preparation for Interview = A True Success Story

Timely Response to Request for Evidence + In-Depth Preparation for I-751 Interview = A True Success Story

Email or call me to set up a consultation if you, a friend or a family member needs to remove conditions on permanent residence or has another U.S. immigration matter that requires my insight.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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Photo by: jdesroc

Timely Response to Request for Evidence + In-Depth Preparation for I-751 Interview = A True Success Story

The USCIS Field Office in Minneapolis approved our clients’ joint Form I-751 petition to remove conditions on residence, even though they lived apart in different states during the marriage and had just moved in together at the time of the interview. A timely response to the Request for Evidence and in-depth preparation for the I-751 interview were essential to getting the approval.

When the U.S. citizen’s I-130 petition and the beneficiary’s I-485 green card application were approved years earlier, the couple resided together. But the beneficiary later moved to another state where job opportunities were better and the living expenses were lower. The couple lived apart for about three years following their marriage. The U.S. citizen delayed relocating with his spouse to fulfill family obligations in his home state. In the meantime, they made a few trips to visit each other and kept up long-distance communication through telephone calls and text messages.

Explanatory Response to Request for Evidence

On their own, the couple filed the joint Form I-751 petition with their tax returns and a few affidavits as supporting evidence. The conditional resident contacted me, for the first time, when she received a Request for Evidence from USCIS instructing her to submit more evidence to show she and her spouse entered the marriage in good faith and continue to share a life together.

USCIS noted the evidence should include proof of children as a result of the marriage, evidence of joint residence, documents showing combined financial resources, and affidavits from third parties who have direct knowledge of the relationship.

In the consultation, I described the documentary evidence to submit in lieu of a joint residential lease, joint bills and other proof of a shared residence. I also noted that detailed affidavits from the couple were necessary to explain the compelling reasons for living separately in different states and their concrete plans to move in together where the conditional resident lives.

The Service may waive the interview requirement only when the documentary evidence is enough to support an approval without question. Because the conditional resident and her U.S. citizen spouse would continue to live in separate states at the time the RFE response was due, I explained that an interview with USCIS was likely.

Maintaining separate residences is a serious negative factor to consider when evaluating the bona fide nature of a marriage. USCIS will not approve an I-751 without an interview when there is no proof of a joint residence.

Falsely claiming to live together is a foolish and risky action to take. This makes the conditional resident subject to being charged with INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain U.S. immigration benefits), which is a lifetime inadmissibility bar to receiving permanent residence. In addition, USCIS may conduct an investigation – such as search open source records and make unannounced visits to the claimed residence – to verify whether the couple really lives together. Such investigations may occur at any time while the petition is pending.

Thorough Preparation for I-751 Interview

Eight months after the RFE was issued, USCIS sent the conditional resident an interview notice to complete the Form I-751 processing. At that point, the U.S. citizen had recently relocated and entered into a new lease agreement with his spouse for their shared residence.

The couple contacted me for representation at the I-751 interview. Before agreeing to attend the interview as counsel, we had a telephone consultation in which we discussed the status of their relationship, the re-establishment of their joint residence, and the potential concerns and questions the USCIS officer would likely have at the interview.

I also counseled them on the additional documentary evidence to submit at the interview. This included their joint residential lease, joint bank account statement, joint utility bill, and home property insurance.

After thoroughly preparing them for what to expect, I attended the interview with them a few days later. The USCIS officer interviewed them separately and asked a variety of questions on the premarital courtship, marital history, living arrangements, medical conditions, family dynamics, reasons for the separate residences, the U.S. citizen’s relocation, and current home they share. Their testimonies were credible and overall consistent with each other.

Removal of Conditions on Permanent Residence Following Completion of I-751 Interview

At the end of the interview, the USCIS officer issued a notice stating the petition has been recommended for approval and an approval notice would be mailed if final approval is granted.

A week later, the couple received the official Form I-797, Approval Notice removing the conditions on residence. The 10-year green card was also mailed in a separate correspondence. Because the applicant had received her conditional residence four years ago and remains married to the U.S. citizen petitioner, she already meets the continuous residence requirement for naturalization (U.S. citizenship).

Separate Residences During Marriage Creates an Obstacle to Receiving I-751 Approval

The years of maintaining separate residences made it harder for this otherwise bona fide married couple to receive an I-751 approval. Without evidence of their trips to visit each other and long-distance communications, as well as their own affidavits and third-party affidavits describing their marriage, the interview would have been tougher.

Further preparation on the testimonies and documentary evidence to present at the I-751 interview was also critical to getting the conditions on permanent residence removed. It was important for them to tell the truth about the separate residences instead of offer fabricated information about their living arrangements. Falsifying evidence is one of the quickest ways to end up with inconsistencies and a denial.

With guidance from counsel, the conditional resident received an I-751 approval despite living separately from her U.S. citizen spouse for several years during the marriage.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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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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Well-Documented Form I-751 Petition (After Divorce) + Full Preparation for Interview = A True Success Story

A USCIS Field Office in Ohio approved our client’s Form I-751 petition with request for waiver of joint filing requirement, despite her not living with the U.S. citizen (who had petitioned for her CR1 spousal immigrant visa) after she arrived in the United States as a conditional resident.

Her detailed affidavit describing the premarital courtship, married life abroad, and reasons the relationship ended in divorce was key to getting a timely approval. Her being fully prepared for the I-751 interview was another driving factor. 

Divorce and No Joint Residence with U.S. Citizen Petitioner After CR1 Spousal Immigrant Visa was Granted

The couple met in the United States while the client was in lawful, nonimmigrant status. At the end of her stay, they departed to her home country, where they married and lived together for a few months. The U.S. citizen filed an I-130 petition for her, but moved back to the United States before the immigrant visa process was completed.

Their relationship was rocky from the start. Marriage counseling and other good-faith efforts to resolve their marital problems did not help. The U.S. citizen petitioner, however, did not withdraw the I-130 or his I-864 affidavit of financial support.

At the CR1 spousal immigrant visa interview, the U.S. consular officer asked very few questions and granted the application. The client became a conditional resident upon her arrival in the United States. She received a conditional green card set to expire within 2 years because her immigrant status was based on a marriage that was less than two years old.

A few weeks after she landed in the United States, she contacted the U.S. citizen petitioner to let him know she was in the country. He was not interested in maintaining their marriage and asked for a divorce. They went their separate ways when he made it clear the relationship was over.

After three years of being legally married to the U.S. citizen and one year following the grant of her conditional residence, she received the court order terminating the marriage.

Individual Form I-751 Petition with Request for Waiver of Joint Filing Requirement

The client contacted me for the first time after she arrived in the United States as a conditional resident and before the divorce occurred. In the consultation, I explained that to get the conditions removed and maintain lawful permanent residence, she normally needed to file a joint I-751 petition with the spouse before the two-year card expires, and no earlier than 90 days before the expiration.

I noted there are only three types of waivers (exceptions) to the joint filing requirement. We determined the most appropriate option was to file for the waiver based on divorce (good faith/divorce waiver), after the divorce proceeding was completed.

I counseled her to start gathering evidence of their married life, including documents showing joint residence abroad, photographs of the two of them together, text messages and emails they exchanged with each other, third-party declarations attesting to the good faith nature of their marriage, a supporting affidavit from the U.S. citizen petitioner, and her own affidavit describing in detail their relationship history and the reasons for the divorce.

Following the divorce, the client contacted me again for full representation in her Form I-751 petition with request for waiver of joint filing requirement. We submitted the petition with the documentary evidence she had collected based on my advice. I included a legal memorandum explaining how she qualified for the I-751 waiver, including the concrete steps she took to salvage a marriage that was beyond repair.

Removal of Conditions on Permanent Residence Following Attorney Appearance at Out-of-State I-751 Interview

Although Dyan Williams Law PLLC is based in Minneapolis, Minnesota, I represent clients from all across the United States and around the world in U.S. immigration matters, which is governed by federal laws, regulations and policies.  I-751 interviews are scheduled at the USCIS Field Office with jurisdiction over the residence of the applicant who, in this case, is in Ohio. 

The day before the I-751 interview, I flew out to Ohio to prepare the client for possible questions from the USCIS officer and address concerns she had about the pending petition. 

When we appeared for the I-751 interview, the USCIS officer asked questions about when and how the couple met, their life together abroad, and the circumstances that led to the divorce.

Because the officer had reviewed the client’s detailed affidavit prior to the interview, she already had a good understanding of the relationship history. The officer also took note of the U.S. citizen petitioner’s affidavit confirming the marriage was based on love and intent to build a life together, but ultimately he no longer wanted to be in the relationship. 

At the end of the interview, the USCIS officer informed us she had no issues with the I-751 petition. In essence, she determined the marriage was entered into in good faith, even though it did not last and  there was no joint residence after the CR1 immigrant visa was granted.

The USCIS officer handed us a Notice of Interview Results stating, “Your case is being held for review. At this time, USCIS does not require any further information or documents from you…” She added that we would receive, in the mail, a decision or a request for evidence if more information or documents was needed. 

Within a week, we received the USCIS Field Office’s Notice of Removal of Conditional Basis of Lawful Permanent Resident stating the (10-year) green card would be mailed and the request for removal of conditions on permanent residence has been approved. The USCIS National Benefits Center in Lee’s Summit, Missouri also issued the official Form I-797C, Notice of Action approving the I-751 petition. The applicant received her 10-year green card directly from USCIS. 

Divorce from the U.S. Citizen Petitioner and Lack of Joint Residence During Marriage Make it More Difficult to Get an I-751 Approval

A combination of factors made it possible for the applicant to get an I-751 approval even though she divorced the U.S. citizen petitioner and did not live with him after she arrived in the United States on the CR1 visa. Without proper counselling, an I-751 applicant in this type of situation is highly likely to get a denial and end up in removal proceedings before the Immigration Court.  

The I-751 applicant made a wise decision to discuss her options with skilled counsel prior to getting divorced and before her conditional residence expired. My guidance helped her to know when to initiate divorce proceedings, what documentary evidence to gather, and how to file for removal of conditions on residence after divorce. 

The legal memorandum submitted with the I-751 petition and counsel’s preparation for and appearance at the interview were also significant. If the applicant had not submitted her detailed affidavit with an explanation letter from counsel in support of the I-751 petition, and had no counsel present at the interview, the questions from the USCIS officer would have likely been a lot tougher. 

The applicant had the backup option of filing for a green card based on her second marriage to another U.S. citizen. This current marriage is solid and includes joint residence throughout the entire marital relationship. But I explained that a new I-130 petition and green card or immigrant visa application only had to be filed if her I-751 petition was denied and her permanent residence was terminated. 

Instead of needing to start from scratch, she received an I-751 approval and had the conditions on her permanent residence removed. She remains a lawful permanent resident who will meet the continuous residence requirement for naturalization (U.S. citizenship) within 5 years of when she was initially granted the (2-year) green card. 

This is a true success story. 

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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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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2019 Public Charge Rule: 3 Key Changes

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.

[UPDATE: A temporary injunction — resulting from federal court litigation – delayed the implementation for USCIS. The new rule is set to take effect on February 24, 2020, and will apply to all applications/petitions to USCIS that are postmarked on or after that date.]

It will affect applications filed (received by the agency) or postmarked on or after the implementation 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, February 2020: On January 27, 2020, the U.S. Supreme Court, in a 5-4 vote, lifted the temporary injunction that stopped USCIS from implementing the new public charge rule, while litigation over its legality continues. Earlier, on October 11, 2019, federal judges in three separate cases enjoined USCIS from enforcing the rule and postponed the effective date until there is final resolution in the cases. With the latest U.S. Supreme Court ruling, USCIS may now enforce the Final Rule nationwide.]

[UPDATE, August 2020: On July 29, 2020, the U.S. District Court for the Southern District of New York enjoined the DHS from enforcing, applying, implementing, or treating as effective the new public charge rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. The nationwide injunction temporarily blocks the implementation of the February 2020 Public Charge Rule. In the interim, USCIS will apply the old 1999 Public Charge Rule to Form I-485, I-129 and I-539 applications filed on or after July 29, 2020.]

[UPDATE, March 2021: Following federal court litigation, USCIS announced, “On or after March 9, 2021, applicants and petitioners should not provide information required solely by the Public Charge Final Rule. That means that applicants for adjustment of status should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).”]

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.”

There is no waiver for immigrants ineligible under INA 212(a)(4).  While a waiver is legally allowed for nonimmigrants ineligible under INA 212(a)(4), consular officers generally do not recommend such waivers as a matter of policy, especially when the visa in question requires non-immigrant intent under INA 214(b).

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.

[UPDATE, March 2021: The 2019 Public Charge Final Rule was scrapped and the 1999 Interim Field Guidance is back under the Biden Administration. USCIS and the U.S. Department of State will apply the 1999 rule in determining whether an applicant meets the INA 212(a)(4)(Public Charge) requirement to be admitted to the United States.]

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.

When the Final Rule goes into effect, 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.

[UPDATE, January 2020: Starting on February 24, 2020, the U.S. Department of State (DOS) will implement the Final Rule and may require Immigrant Visa applicants and K-1 visa applicants to complete the Form DS-5540, Public Charge Questionnaire. This form requests information on the visa applicant’s household size and income, assets, liabilities, education, job skills, health, and receipt of public benefits. Read the Form DS-5540 instructions for more information.

[UPDATE, August 2020: A nationwide injunction from the U.S. District Court for the Southern District of New York enjoined the DHS from enforcing the February 2020 Public Charge rule in response to the COVID-19 outbreak. In the interim, Form I-485 applications that are filed on or after July 29, 2020 do not have to be accompanied by the Form I-944.]

[UPDATE, March 2021: Following federal court litigation, USCIS announced, “On or after March 9, 2021, applicants and petitioners should not provide information required solely by the Public Charge Final Rule. That means that applicants for adjustment of status should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).”]

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 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.

The new Public Charge Rule gives adjudications officers broader discretionary power in determining whether a person is inadmissible on the public charge ground. This will likely to increase processing times, create confusion over eligibility and filing requirements, and add complexities in applications, especially during the initial stages of implementation. 

[UPDATE, March 2021: While the 2019 Public Charge Final Rule will no longer apply to pending applications and petitions as of March 9, applicants still have to show they will not become a public charge to the U.S., based on 1999 guidelines.]

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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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