Form I-485, also known as the Application to Register Permanent Residence or adjust status, holds significant importance for individuals seeking lawful permanent residency in the United States.
This essential document enables immigrants to apply for a Green Card, marking a crucial step towards achieving lawful permanent resident status.
The concept of public charge highlights the complexity and dynamic nature of immigration law. Immigration law, due to its political context in the United States, is subject to frequent revisions and updates, making it a particularly intricate area of legal practice.
Understanding the implications of public charge and its potential impact on your application for Adjustment of Status or lawful permanent residence is of utmost importance.
Now, let us delve deeper into the concept of public charge and explore how it could potentially influence your pursuit of adjustment of status or lawful permanent residency.
An Overview of the Public Charge Rule
The Department of Homeland Security (DHS) made a new rule called the public charge rule that started on December 23, 2022.
This rule affects people who are applying to become permanent residents or adjust their status in the United States. The updated application form for this process, called Form I-485, now has additional questions about public charge.
The U.S. Citizenship and Immigration Services (USCIS) also updated its Policy Manual to guide officials on how to use the new questions when deciding if someone is a public charge.
A Practice Advisory was created to analyze each of the public charge-related questions on the I-485 form and give advice based on the agency’s guidance.
Important Note: If it is determined that you are considered a public charge, you will be ineligible to enter the United States and, in most cases, unable to proceed with the process of adjusting your immigration status.
Public charge-related questions on form I-485
When someone is called a “public charge,” it means that they rely heavily on the government for their basic needs. This could be because they have received assistance from the government to support themselves.
The public charge rule applies to people who are applying for visas, admission to the United States, or those seeking to become lawful permanent residents. However, some individuals are exempt from this rule.
Typically, the public charge inadmissibility determination is made when noncitizens apply to change their status to become lawful permanent residents.
When filling out the I-485 form, applicants are required to provide details about their household income, assets, and debts. Additionally, they must indicate their level of education and confirm whether they have received specific types of government assistance.
What is the Difference Between the New Public Charge and the One From 1999?
The new public charge rule is almost the same as a rule from 1999 that was used for 20 years. The old rule still applies to applications filed before December 23, 2022.
According to the law, if an applicant is likely to rely mainly on the government for money or if the government has to pay for their long-term care, they can be denied entry to the United States.
The new rule defines “public cash assistance for income maintenance” as only three specific programs: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and certain state and local cash assistance programs.
The biggest difference between the old rule and the new rule is that USCIS considers five factors when deciding if someone is a public charge. These factors are age, health, family status, assets and financial status, and education and skills.
In the past, USCIS mainly focused on the affidavit of support, which is a legal promise from someone who agrees to financially support the applicant. The affidavit of support is still very important even with the new rule.
The new form I-485 must be used for applications submitted on or after December 23, 2022. The new public charge rule and guidance will only apply to these applications and not to ones filed before that date or to visa applications processed through a U.S. consulate.
The Department of State is expected to create its own rule or update its guidelines to match the DHS’s interpretation of public charge.
USCIS has said that applicants don’t have to provide any initial evidence to support their answers to the new public charge questions. However, USCIS may ask for proof of employment history or a job offer later on.
Applicants can still choose to submit evidence with their I-485 form, and USCIS will consider any evidence related to the five factors mentioned earlier.
Who Falls Under the Public Charge Ground of Inadmissibility?
Unless they are specifically exempted, all applicants for Adjustment of Status, regardless of whether they are applying through family-based petitions, employment-based petitions, or diversity applications, are subject to the public charge ground of admissibility.
The USCIS Policy Manual provides helpful charts and guidance in its appendices to explain when an affidavit of support is required.
The majority of both employment-based and family-based petitions are subject to the public charge ground of inadmissibility.
In employment-based categories, noncitizens are generally subject to it, unless they are adjusting their status based on an employment-based petition filed by a qualifying relative or an entity in which the relative has a significant ownership interest of 5% or more.
Additionally, the applicant must meet the requirements for an exemption category under INA §212(a)(4)(E) at the time of filing and adjudication of Form I-485. Although they are not subject to INA §212(a)(4), they are still required to file Form I-864.
A qualifying relative can be a spouse, parent, child, adult son, adult daughter, sibling, or certain other family members. Significant ownership interest refers to owning 5% or more of a for-profit entity that filed an immigrant visa petition for the purpose of granting an employee immigrant status under section 203(b) of the Act.
Even if they are exempt, some noncitizens applying for adjustment of status may still need to submit an Affidavit of Support under Section 213A of the INA. This includes noncitizens whose employment-based petition was filed by a relative or by an entity in which the relative has a significant ownership interest.
However, certain groups of people are exempt from being classified as a public charge according to the law. This means that their application for residency or adjustment of status application will not be negatively affected by public charge considerations.
Here are the specific categories of individuals who are exempt:
- Refugees: People who have been granted refugee status in the United States are exempt from public charge classification. Refugees are individuals who have fled their home countries due to fear of persecution.
- Asylees: Individuals who have been granted asylum in the United States are also exempt from public charge classification. Asylees are people who have sought protection in the United States due to fear of persecution in their home countries.
- Special Immigrant Juveniles: Special immigrant juveniles are young individuals who have been declared dependent on a juvenile court due to abuse, neglect, or abandonment by one or both parents. They are exempt from public charge classification.
- Afghan and Iraqi Interpreters: Interpreters from Afghanistan and Iraq who have worked with the United States Armed Forces, as well as their immediate family members, are exempt from public charge classification. This exemption acknowledges their contributions and service to the United States.
- Afghan and Iraqi Nationals: Nationals from Afghanistan and Iraq who have been granted Special Immigrant Visas (SIVs) are exempt from public charge classification. SIVs are provided to individuals who have assisted the United States in their respective countries.
- V.A.W.A. Self-Petitioners: Victims of domestic violence, who are eligible to self-petition under the Violence Against Women Act (V.A.W.A.), are exempt from public charge classification. This exemption recognizes the vulnerable position of victims and allows them to seek protection and support.
Does the Public Charge Affect a Green Card Application?
If you are planning to apply for a Green Card or a Visa and your status is not specifically exempted from the public charge rule, then the public charge rule may affect you.
If the public charge rule applies to you, it could potentially be used as a reason to deny your green card or visa application.
However, it is important to note that receiving most public benefits for yourself and your family should not negatively impact your green card or visa application.
Which Public Benefits Can Safely Be Used Without Affecting Green Card or Visa Applications?
If the public charge rule applies to you and you are planning to apply for a Green Card or Visa, it’s important to know that your family can safely utilize any public benefits programs they are eligible for.
The public benefits received by your family members cannot be used against you in the application process.
Additionally, you can also safely access many public benefits programs that you qualify for, including but not limited to the following examples:
- Medicaid/Medical Public Assistance, except when used to cover nursing home expenses
- Children’s Health Insurance Program (CHIP)
- Health insurance plans offered through the Marketplace/Obamacare/Penniessi
- Medicare
- Prescription Assistance Programs
- Charity Care
- Community Health Clinics
- COVID Vaccines
- Stimulus Payments
- Child Tax Credit
- Earned Income Tax Credit
- Supplemental Nutrition Assistance Program (SNAP)/food stamps
- Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
- School meals/Pandemic Electronic Benefit Transfer (P-EBT)
- Food cupboards/pantries
- Unemployment Compensation
- Workers’ Compensation
- Housing subsidies
- Rental Assistance
- Rent and property tax rebate
- Utility Assistance
There are many other programs available as well. Utilizing these public benefits will not negatively impact your green card or visa application.
Which Public Benefits Affect the Public Charge Determination?
Inadmissibility will be determined for applicants who are deemed “likely at any time to become a public charge”.
The final rule specifies this as individuals who become “primarily dependent on the government for subsistence,” demonstrated by either receiving public cash assistance for income maintenance or being long-term institutionalized at government expense.
Cash assistance for income maintenance comprises the following:
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- State or local general relief or general assistance
What Supporting Evidence is Required for Form I-485 to Avoid Public Charge Classification?
When going through the Form I-485 application, it is crucial to include supporting documents to strengthen your application.
One essential document is the Affidavit of Support, also known as Form I-864, which must be provided by a financial sponsor for all family-based petitions.
This form serves to demonstrate that the applicant has sufficient financial support and is unlikely to depend on the U.S. government for financial assistance.
By presenting this evidence, it helps assure USCIS that the applicant will not become a public charge.
It’s important to note that Form I-485 has undergone updates, and starting from December 23, 2022, all applications must use the new form. Failure to use the updated form may result in the rejection of the application.
Furthermore, the revised form now includes additional questions specifically designed to assess the public charge aspect, further emphasizing the importance of addressing this requirement thoroughly.
Does Receiving Public Cash Assistance for Income Maintenance Automatically Lead to the Denial of a Green Card?
It should be noted that receiving public benefits that impact the public charge evaluation does not automatically result in the denial of a Green Card.
The United States Citizenship and Immigration Services (USCIS) assesses the overall circumstances, considering the present and/or past receipt of public cash assistance for income maintenance, as well as long-term institutionalization funded by the government.
Factors such as the amount, duration, and recency of the benefits received are taken into account. It is crucial to understand that the mere receipt of these benefits alone is insufficient grounds to determine that an applicant is likely to become a public charge at any point in the future.
What is the Final Rule and How Does it Relate to the Public Charge Rule?
The Final Rule, officially titled “Inadmissibility on Public Charge Grounds,” was a regulation introduced by the Department of Homeland Security (DHS) in August 2019.
It aimed to define and expand the criteria for determining whether an individual applying for a visa or lawful permanent residency in the United States could be considered a public charge.
The Final Rule redefined the term “public charge” to include individuals who are likely to become primarily dependent on the government for financial support, as demonstrated by their use of certain public benefits.
It expanded the list of public benefits that could be considered, including programs like Medicaid, Supplemental Nutrition Assistance Program (SNAP), and housing assistance.
Under the Final Rule, immigration officials were instructed to consider various factors when determining whether an individual was likely to become a public charge.
These factors included age, health, family status, assets, financial status, and education and skills. The rule emphasized the importance of an Affidavit of Support (Form I-864) from a financial sponsor to demonstrate that the applicant would not rely on government assistance.
However, it’s important to note that the Final Rule faced legal challenges, and its implementation was subject to court injunctions in certain states.
In November 2020, a federal court vacated the rule nationwide, effectively halting its enforcement. As a result, the previous public charge policy in place before the Final Rule was restored.
What Changes Were Made to the Public Charge Section of the New I-485 Form?
The updated version of the I-485 Form, effective from December 23, 2022, includes a set of questions in Part 8 that aim to determine if an adjustment of status applicant is admissible to the United States (U.S.) based on the public charge grounds. These new questions are as follows:
- Does the applicant fall under the category of public charge inadmissibility?
- What is the size of the applicant’s household?
- What is the applicant’s total annual income?
- What is the total value of the applicant’s assets?
- What is the total value of the applicant’s household liabilities?
- What is the highest level of education completed by the applicant?
- Please provide certifications, licenses, and skills obtained through work experience.
- Have you ever received S.S.I., T.A.N.F., or state/local/tribal/territorial cash assistance?
- Have you ever received long-term institutionalization at government expense?
If you find yourself in need of assistance while completing the form, it is highly advisable to consider engaging the services of a skilled and experienced immigration lawyer.
The complexity and evolving nature of immigration law, coupled with the significance of Form I-485 in your journey toward lawful permanent residency, make it crucial to seek professional guidance.
It is important to answer these questions accurately, particularly regarding your financial status, as it can impact your public charge determination.
Below, we will provide clear explanations for some of the questions to ensure your understanding.
What is the size of your household?
According to the instructions provided in the I-485 Form, the following individuals should be considered when determining your household size:
- Yourself
- Your spouse, if living with you
- Your parents, if living with you
- Your unmarried siblings under 21 years of age, if living with you
- Your children as defined in INA 101(b)(1), if living with you
- Any other individuals who claim you as a dependent on their federal income tax return.
It is important to note that the method of determining household size for the applicant is different from that used for the sponsor when filing the affidavit of support (Form I-864).
Sponsors are not required to include parents or siblings residing with them unless they are including their income and completing Form I-864A. However, sponsors must include their spouse and unmarried children, regardless of their place of residence.
For the applicant, all household members’ income and assets can be included. Unlike sponsors, applicants are not required to meet a minimum income requirement, and their household size is not assessed against the Federal Poverty Guidelines.
What is your total annual income?
Applicants are advised to select an income range that reflects the total income of their household.
According to the instructions for Form I-485, you can include income received by your household from sources that are not members of your household, such as alimony or child support.
However, you should exclude any income from Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and state, tribal, territorial, or local cash benefits for income maintenance (sometimes referred to as “General Assistance” at the state level, but also known by other names).
Additionally, income derived from illegal activities or sources, such as proceeds from illegal gambling or drug sales, must also be excluded.
Please provide certifications, licenses, and skills obtained through work experience
As per the instructions provided in Form I-485, applicants should include a comprehensive list of their certifications, licenses, and skills acquired through work experience, as well as educational certificates.
This encompasses various aspects, including but not limited to workforce skills, specialized occupational or professional licenses, proficiency in foreign languages, and certificates attesting to the completion of apprenticeships or mastery in skilled trades or professions.
Educational certificates are awarded by educational institutions or training providers and serve as proof of completing a program of study related to a specific occupation.
Conclusion
In conclusion, understanding the public charge rule and its implications is crucial for individuals applying for a Green Card or seeking to adjust their status in the United States.
The updated Form I-485 now includes specific questions related to public charge, highlighting the importance of addressing this aspect thoroughly. It is essential to accurately answer questions regarding household size, total annual income, and certifications, licenses, and skills obtained through work experience.
While utilizing public benefits for yourself and your family should not negatively impact your application, providing supporting evidence, such as the Affidavit of Support (Form I-864), is crucial to demonstrate financial stability and avoid being classified as a public charge.
It is important to stay informed about the public charge rule, as immigration laws and policies are subject to frequent updates, ensuring compliance with the latest guidelines to navigate the adjustment of status or lawful permanent residency process successfully.
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