Editor’s note: Alexis Katsiaficas is an immigration attorney who works for Alpine Legal Services. The Alpine Legal Services Immigration Department provides direct representation exclusively to victims of crime at this time.
As an immigration attorney, all of the clients I meet want to become lawful permanent residents. But it has become harder to qualify, in part because of the public charge test.
Public charge is a policy that U.S. Citizenship & Immigration Services (USCIS) officers use when analyzing applications for green cards (lawful permanent residency) when petitioners apply through family members, or for those who file for an immigrant visa to come to the U.S. It also applies to some people with green cards who leave the U.S. for more than six months.
By law, USCIS must look at an applicant’s whole life situation to decide if they can get a green card. They look at your age, your health and your family. They also check your income, education and work skills. Part of this includes whether a family member or someone else has promised to support you financially.
The public charge test looks at whether you are likely to depend on the government at any time. A new policy that will take effect on Sept. 18 says that USCIS can look at any type of benefits you have used that are meant for people with limited income. Having received a benefit does not automatically make you ineligible. Because these rules are complicated, it is a good idea to talk to a lawyer before you leave the country or apply for your green card.
The Immigration and Nationality Act §212(a)(4), also known as public charge, lays out grounds of inadmissibility under U.S. law and applies to individuals seeking a visa, admission or adjustment of status. A person may be deemed inadmissible if, at the time of applying, they are likely to become a “public charge,” meaning primarily dependent on government assistance for subsistence, either through public cash benefits or long-term institutional care at government expense (short-term medical rehabilitation does not count).
Does not apply to everyone
Public Charge applies to adjustment of status (AOS) applications and immigrant visa applications, but DOES NOT apply to every AOS application. Public charge generally applies to family-based AOS and employment-based AOS. Public charge DOES NOT apply to other immigration applications, AOS for special immigrant juveniles, U-visas, T-Visas, violence-against-women petitions, asylees, refugees and others.
Examples of public charge
Examples of public charge include: 1) supplemental security income; 2) cash temporary assistance for needy families (TANF), but not including supplemental cash benefits or any non-cash benefits provided under TANF; and 3) state and local cash assistance programs that provide for income maintenance (often called state general assistance). These types of assistance are sometimes also referred to as “means-tested benefits.”
What changed?
The 2022 Public Charge Rule was rescinded on July 20, and the effective date of change is Sept. 18. The new Public Charge Rule considers more public benefits as public charge, including that relatives’ benefits are now also considered, using a “totality of the circumstances” analysis model. Having a sponsor file an I-864 (affidavit of support) is often enough, but it is only one factor considered with all the other factors. The bad news is that it will be a more subjective decision by the USCIS officer than before.
Public charge determination
There are things an AOS applicant can do to help avoid or address a public charge determination. With an I-864, a U.S. sponsor can legally commit to financially support the applicant, demonstrating they will not rely on public benefits. Financial documentation, such as tax returns, bank statements, employment verification and assets can strengthen the case.
If the primary sponsor’s income is insufficient, a joint sponsor may help meet the requirement. For nonimmigrant visa applicants, demonstrating financial independence and strong ties to their home country can reduce the risk of a public charge finding.
Getting help from a qualified immigration attorney can make the difference in an approved or denied application. Alpine Legal Services can make local and statewide referrals to attorneys in the American Immigration Lawyers Association.
Author’s disclaimer: This article does not constitute legal advice. Each individual case is fact specific. Therefore, we recommend you talk to a family-based immigration attorney if you are concerned about how accepting means-tested benefits will affect your application to adjust status as a lawful permanent resident.