Last year, USCIS announced proposed policy changes relating to the requirement that a person seeking admission to the U.S. is not likely to become a public charge. A public charge is someone who is dependent on public resources while in the U.S., such as welfare benefits. A person seeking admission is anyone seeking to obtain a visa to the U.S., entry into the U.S. or permanent resident status.
The government has drastically expanded the applications with which it will test for a public charge issue. In the past, people pursuing employment and investment-based immigration options were presumed to have no issues with the public charge inadmissibility ground.
Although the law applied to everyone, the review was reserved for people seeking to immigrate to the U.S. through family relationships. In that situation, an Affidavit of Support provided by the person petitioning for the relative to immigrate to the U.S. and a Joint or Co-Sponsor, if necessary, was sufficient to meet the requirement. The burden and obligations associated with that process were minimal. That has all changed.
Public Charge Policy Set To Implement After Decision in the U.S. Supreme Court
On February 24, 2020, USCIS will start to implement the policy changes relating to public charge for immigration filings, including investment and employment-based options. This will have a major impact on chances for success and costs of processing applications for U.S. immigration benefits.
Because this is a new policy, it will take time for us to understand where the lines are for people seeking to immigrate to or even to come on a visa to the U.S. regarding the public charge issue. What we do know is how things have changed procedurally and what kinds of things USCIS is requiring to be disclosed for them to assess the risk of a person seeking an immigration benefit becoming reliant on public assistance while in the U.S.
Form I-129 is used for sponsoring a person for various employment visas, such as H-1B Professional Worker, L-1A Intracompany Transferee – Executive or Manager, E-2 Investor and R-1 Religious Worker. The I-539 form is used to apply for non-petition status extensions and changes, such as B-2 Visitor and F-1 Student. USCIS has amended these forms to require disclosure about the receipt of public assistance since receiving the nonimmigrant status the person seeks to extend or change.
How Will The Public Charge Policy Affect The Immigration Process?
All applicants for Adjustment of Status, Form I-485, will be required to include Form I-944 Declaration of Self-Sufficiency with the I-485 Application. In that form, the government requires significant disclosures related to the following:
Family Status – including household members
Family Assets, Resources and Financial Status – including income, assets, personal balance sheet, credit report and score, and bankruptcy filings anywhere in the world
Health Insurance – including disclosure of whether the person has or will obtain health insurance, how medical costs will be covered, including deductibles and premiums, as we as medical costs for uninsured persons
Public Benefits – including SSI, TANF, SNAP, Section 8, and federally-funded Medicaid
Education – including whether the applicant graduated from High School and all other post-High School education
Skills – including certifications, licenses, other occupational skills, and language ability – which includes English
Gathering and reporting this information will be time-consuming and cumbersome. Additionally, failing to disclose any item or making misrepresentations on this form could result in denial or revocation if it is ever discovered. All applicants much do their very best to be honest and thorough with these disclosures to maximize chances for success.
Some people may have an issue with one or more of these items, such as a bankruptcy, poor credit history, or unavailability of affordable medical insurance. The question for the lawyer is, “How will that affect my case?” The problem is, no one knows for sure. If the explanation is reasonable, or if it’s been a long time and the financial situation has now improved, then perhaps USCIS will still approve the case. Or maybe there are responses to the form that are guaranteed to result in denial. The challenge for us is because it is so new, we cannot know the effect of the disclosure of negative information. We will all have to learn together what the consequences are of various disclosures on these forms.
What is the Public Charge Bond?
One option USCIS has to resolve concerns it has about whether an applicant will become a public charge is to require a Public Charge Bond. Form I-945 is the form to submit a Public Charge Bond. Someone will need to serve as the Obligor on the bond and provide significant information and commit to significant obligations. The bond will be forfeited if the person seeking the immigration benefit receives public assistance for 12 months within a 36 month period. Receipt of 2 benefits in 1 month counts as 2 months. Once that happens, the bond is forfeited.
The minimum bond amount is set at $8,100. It could be higher. It is optional, but if it’s not paid, presumably USCIS will deny the application. USCIS will determine whether it is required and how much will be required on a case by case basis. That is code for we have no idea at this point in what situations they will require it and what amount they will impose. Once paid, the bond can only be canceled in the following situations:
The person becomes a U.S. citizen
The person permanently departs the U.S.
The person dies
The person reaches 5 years as a permanent resident
The person has become exempt from the public charge requirement, such as through refugee or asylee status, the Violence Against Women Act, or some similar provision of law
The Form to seek cancellation of the bond is I-356. Note that divorce does not end the bond obligation. Neither does the death of the person who paid the bond.
Is There Any Way To Avoid The New Public Charge Policy?
One thing to keep in mind is that disclosures about the receipt of public benefits are only required for those benefits received, certified or approved to receive on or after February 24, 2020. Also, the disclosure requirements only apply to benefits received by the person seeking the immigration benefit for themselves, not for a dependent or someone over whom the person has guardianship or other legal custody.
As the policy change has survived Supreme Court scrutiny, we will have to start working with it for cases filed on or after February 24, 2020. We encourage everyone who is eligible to file Forms I-129, I-539, I-485 and I-601 to get them filed prior to February 24, 2020, if possible. USCIS will honor the previous policy for all cases postmarked no later than February 23, 2020.
Do You Need Immigration Help?
Changes in immigration policy are difficult to navigate on your own. Schedule a free consultation with us and we’ll look over your case and help you through your options.
About Davis & Associates:
Davis & Associates is the immigration law firm of choice in Houston & North Texas including Dallas, Fort Worth, Plano, Frisco, McKinney and surrounding areas. Their attorneys provide expert legal counsel for all aspects of immigration law, including deportation defense, writs of habeas corpus and mandamus, family-sponsored immigration, employment-sponsored immigration, investment immigration, employer compliance, temporary visas for work and college, permanent residence, naturalization, consular visa processing, waivers, and appeals. Attorney Garry L. Davis is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.