FREQUENTLY ASKED QUESTIONS: PUBLIC CHARGE RULE 2020
These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in this FAQ without first seeking advice from a qualified attorney.
Q: What is the Public Charge Rule?
A: On February 24, 2020 the USCIS began implementing its new public charge rule which will apply to applicants for adjustment of status and those seeking to change or extend their nonimmigrant status. Applicants will need to establish that they are not likely to become a public charge (adjustment applicants) and that they have not received or been certified to receive certain benefits for more than 12 months in a 36 month period (for nonimmigrants).
Q: What is Required Under the Public Charge Rule?
A: For applicants for adjustment of status (green card), the USCIS will now require the 18 page Form I-944 and supporting documentation, which will be used to determine based on a “totality of the circumstances” analysis whether the foreign national is likely to become a public charge in the future. Supporting documentation includes but is not limited to: credit report or credit score; evidence of financial assets; evidence of financial liabilities (mortgage, credit card debt, education loans); evidence of health insurance coverage; medical conditions; size of family; education level and likelihood an applicant can earn an income to support him/herself including English language proficiency.
For foreign nationals applying for a change or extension of nonimmigrant status (F-1 to H-1B, or H-1B extensions, e.g.), the USCIS will analyze whether an applicant has received or been certified to receive certain benefits for more than 12 months aggregate in a 36 month period (starting from February 24, 2020). The USCIS has incorporated additional questions relating to these benefits in their forms.
Q: What Are the Benefits the USCIS Will Look at When Making a Determination of Public Charge?
A: Applicants for adjustment of status and applicants for a change or extension of nonimmigrant status will need to answer if they have received or been certified to receive:
- Any Federal, State, local or tribe cash assistance for income maintenance such as Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF) or General Assistance (GA) based on low income
- Supplemental Nutrition Assistance Program (SNAP, 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 the Housing Act of 1937, 42 U.S.C. 1437 et seq.
- Federally-Funded Medicaid
The USCIS has issued policy guidance on the public benefits they will consider.
Q: What Benefits are NOT Included in the Public Charge Determination?
A: The USCIS policy guidance specifies that the following public benefits will not be considered in the public benefits analysis:
- Tax-related cash benefits such as the Earned Income Credit, Additional Child Tax Credit or the Premium Tax Credit
- Federal Old-Age, Survivors, and Disability Insurance Social Security benefits (SSDI)
- Social Security
- Veteran’s benefits and medical treatment through the Veteran’s Health Administration
- Government pension benefits and healthcare
- Unemployment benefits
- Worker’s compensation
- Federal and state disability insurance
In addition, these other benefits are not considered public benefits in the public charge determination (this list is not exhaustive)
- Any services provided under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)
- Programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) provided by local communities through public or private nonprofit organizations
- Public health assistance for immunizations with respect to immunizable diseases
- Attending public school
- Benefits through school lunch or other supplemental nutrition programs
- Special supplemental Nutrition Program for Women, Infants and Children (WIC)
- Health Insurance through the Affordable Care Act
- Transportation vouchers or other non-cash transportation services
- Student loans and home mortgage loan programs
- Foster care and adoption benefits
Q: What if my Change of Status or Extension of Status request was filed before the 2/24/2020 Effective Date of the new Public Charge Rule?
A: The new public charge rule only applies to applications and petitions postmarked on or after 2/24/2020.
Q: What Should I Prepare if I am Waiting for my Priority Date to Become Current so I Can File the Adjustment of Status Application?
A: Weaver Schlenger will provide clients with a list of supporting documents to gather. Our recommendations may change as we learn more about how the government will apply the public health rule. A good starting point is to review the Form I-944.
Q: Does the Public Charge Rule Apply to My Dependent Spouse and Minor Children?
A: Yes, the public charge rule applies to all applicants although children will be reviewed with the parents’ documentation. Each applicant for adjustment of status will require the Form I-944.
Q: Will This Impact Government Processing Times?
A: It seems likely that government processing will be delayed due to the required public charge analysis and review of documentation.
Q: How does this impact applications for nonimmigrant or immigrant visas at a U.S. Consulate?
A: As of February 24, 2020, the Department of State (DOS) is requiring all applicants for an immigrant visa (green card, or permanent residence) to complete the new Form DS-5540, a questionnaire which collects information about financial status such as assets and liabilities, health insurance and previous receipt of public benefits, to determine if the applicant is likely to become a public charge in the future. The DOS also has the discretion to require nonimmigrant visa (H-1B, L-1, e.g.) applicants to complete the Form DS-5540. In addition, supporting documentation may be requested by the consular officer for both immigrant and nonimmigrant visa applicants.
Weaver Schlenger recommends all visa applicants be prepared with supporting documentation to show the unlikelihood of relying on public benefits during their stay in the U.S. Clients who plan to apply for a visa should contact our office before any travel.
Updated 2/26/2020. Weaver Schlenger will continue to update this page as more information becomes available.