Update to Public Charge Rule

January 24, 2023
Aaron Lawee

Many of you have heard about changes to the “public charge” rule that went into effect on December 23, 2022. Minsky McCormick & Hallagan will address some important questions about this change in policy below. In short, the new changes require that certain green card applicants provide additional information as part of their applications, but they do not necessarily need to provide additional proof or documents.

What is the public charge rule?

The law making a “public charge” a basis for ineligibility to immigrate (technically called a “ground of inadmissibility”) has existed for well over 100 years in the United States. The term “public charge” refers to someone that immigration believes is likely to become dependent on the government; this law allows the government to deny entry to non-citizens who cannot prove they will be self-sufficient. The law can also be used to deny applications for visas or permanent residency. There is a related public charge law that is used to restrict the ability of most immigrants to receive public aid. Different administrations have used different ways to determine whether someone is likely to be a “public charge” or not. Recently, the Biden administration adopted a new rule dealing with how the US Government should decide if an adjustment of status applicant is likely to become a public charge.

Changes to the Public Charge Rule During the Trump Administration:

From 1999 onward, the US Government relied on interim guidance to help apply the public charge ground of inadmissibility. In the case of family-based applications, applicants with a qualifying financial sponsor were generally approved, as long as the sponsor submitted proof of income and a signed Form I-864, Affidavit of Support. This approach changed under the Trump administration. The Trump administration began requesting that applicants submit credit scores, proof of health insurance, tax transcripts, education records, and other documents to prove their ability to support themselves. Additionally, for adjustment of status applications, USCIS began requiring information on any federally funded public benefits that an applicant received, applied for, or was certified to receive, including benefits for health emergencies or those given when the applicant was under 21. These laws created substantial confusion, because it was no longer clear what would be sufficient to avoid being considered a public charge. More troubling, many immigrant families were afraid of receiving much-needed benefits for eligible U.S. citizen spouses or children. These laws were challenged in court in multiple contexts, and ultimately, the Biden administration chose not to defend them in court. Thankfully, the Trump rules are no longer in effect.

What is the current change that went into effect on December 23, 2022?

The recent public charge rule mostly adopts and strengthens the guidance that has been in place for over twenty years. The new rule applies to USCIS, so visa applicants are not impacted. The new rule ensures USCIS should consider multiple factors when evaluating if a person is likely to become a public charge, but it does not necessarily require any additional evidence. Additionally, USCIS provides more guidance on what public benefits should and should not be held against applicants. The most noticeable change is a change to the I-485 (Application for Adjustment of Status) form itself. The form now explicitly requests information about the applicant’s household income, education level, assets, debt, and whether they have ever received certain types of public benefits. The applicant is not required to submit ANY evidence in support of their answers, but USCIS does always have the right to request evidence if it wants. This is in stark contrast to the Trump Administration rules which required applicants to fill out an 18-page public charge form with numerous supporting documents.

Ultimately, we do not anticipate this having a large impact on our clients. The form requires that an applicant answer about 10 extra questions, but again, no additional documents are required with the initial application. However, because USCIS may request additional evidence if that becomes necessary, we recommend that our clients gather the necessary supporting evidence in the event that USCIS does request it. If you have any questions about how this policy could impact your application, do not hesitate to schedule a consultation with one of our attorneys at (312) 427-6163.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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