October 10, 2019

As noted in our
August newsletter , the Department of Homeland Security (DHS) published a sweeping amendment to regulations in August which revises the definition of "public charge" in the context of eligibility for immigration benefits. More specifically, it increases the number of public benefits which make an individual inadmissible (including food stamps and Medicaid). You can view a summary of the rule on the USCIS website

The new regulation takes effect on Tuesday, October 15, though there are multiple pending lawsuits and there is a chance that an injunction will be issued before then. For the newly-added public benefits, it is important to note that USCIS will only consider benefits received after October 15, 2019 when determining whether an applicant is or may become a public charge.

Please also note that the Department of State (DOS) intends to issue an Interim Final Rule tomorrow amending the DOS public charge policy, which will match this new DHS policy and will also take effect on Tuesday, October 15. That policy will affect processing of visa applications at Consulates and Embassies abroad, and we will address it in more detail separately.

New USCIS Forms and Requirements

On October 9, USCIS issued revised forms for the permanent residence and many nonimmigrant visa applications and petitions to reflect changes made by the new rule.  The new forms must be used for all cases postmarked on or after October 15.  

Nonimmigrant Visa Petitions (E, H, L, O, TN, etc.) and Dependent Applications

Beginning October 15, all I-129 petitions and I-539 applications must be filed using the new USCIS forms. These forms ask questions about any public benefits the individual has received, or been certified to receive. Depending on their answers, the individual may be found to be ineligible to change or extend their status in the United States.

For nonimmigrants, the public charge inadmissibility grounds are only applicable to requests to change or extend the individual's status in the United States, and the public benefits will only be considered if they were received by the individual after October 15, 2019 and since obtaining their current nonimmigrant status. Looking to the future, individuals who received more than 12 months (in the aggregate) of benefits in the 36 months prior to filing will be ineligible to change or extend their status in the United States. Due to the associated DOS public charge changes, those individuals may also be ineligible to obtain new visas to return to the United States.

Green Card Applications

Beginning October 15, all I-485 applicants for adjustment of status to permanent residence (including dependents) in employment-based or family-based categories will be required to use the revised Form I-485, which has grown from 18 to 20 pages, along with a new Form I-944, Declaration of Self-Sufficiency, an 18-page form meant to capture information regarding past use and likely future use of public benefits, as well as the applicant's overall financial situation and that of their household members. The I-944 also requires a large amount of supporting documentation, discussed in more detail in the next section.

In the I-485 context, an applicant may be found inadmissible if it is determined that "he or she is more likely than not, at any time in the future, to receive one or more public benefits, as defined in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)." USCIS will apply a complex "totality of the circumstances" test which weighs the applicant's age, health, family status, education and skills, and assets, resources and financial status, taking into account a broad range of positive and negative factors.

What does this mean in practice for our clients?

For nonimmigrant cases (H, L, O, E, TN, etc.), it is possible there may be an injunction of some sort, since it seems inappropriate for employers to request personal information from and then attest to their employees' receipt of public benefits. If there is no injunction, effective next week we will begin to use the new I-129 and I-539 forms with additional questions about public benefits received by the employee / dependents (which the employer must attest to on the I-129). If the employee / dependent receives or is certified for any public benefits after October 15 while in their current status, additional information and documentation will be required to complete the form.

Completion and filing of I-485 applications will be subject to significantly increased disclosure of information and personal documentation, which will result in increased legal analysis and longer timeframes to prepare and file the applications. The new, extended Form I-485, in conjunction with the new Form I-944, is effective next week unless enjoined. In addition to the extensive questions on Form I-944 about the applicant and their household, following is a (non-exhaustive) list of new documentation which will be required with the green card filing:
  • IRS transcript(s) of the most recent Federal income tax returns for the applicant and all household members with income included on the form. If the applicant or any household members filed foreign taxes due to residing outside of the U.S. for all or part of the previous year, a transcript of those taxes should be filed. 
  • Evidence of any additional income (e.g. child support, unemployment benefits) not listed on the above tax returns.
  • Evidence of the household's assets and resources, such as statements from checking and savings account (for the past 12 months), retirement and educational accounts, stocks and bonds, and any other evidence of substantial assets that can easily be converted into cash within 12 months.
  • Documentation of all liabilities/debts (e.g. mortgages and car loans, credit card debt).
  • U.S. credit report and credit score generated within the last 12 months, or if no credit report/score, documentation from a credit bureau that it does not exist, along with evidence of continued payment of bills.
  • Evidence of health insurance, including either a copy of each policy page showing the terms, type, and length of coverage and individuals covered, or a letter from the health insurance company on letterhead stating the applicant is currently enrolled and providing the terms and type of coverage, or the most recent Form 1095-B or 1095-C with evidence of renewal of coverage for the current year. Applicants must also provide documentation of the annual premium and deductible amounts.
  • Documentation of any public benefits the applicant has been certified for or received; denied or rejected applications; disenrollment requests; and withdrawal requests. If applicable, evidence that the applicant qualifies for exclusion from the public charge grounds for receipt of certain public benefits based on qualifying exemptions.
  • For dependents who are currently unemployed because they are the primary caretaker of a child or elderly or disabled individual which has limited their ability to work, documentation establishing this.
  • For dependents, evidence of any degrees (high school or higher) or certifications received, such as transcripts, diplomas, degrees, and trade profession certificates or equivalent, including educational evaluations of college-level foreign degrees. Additionally, evidence of any certifications and licenses, including those for workforce skills, training, apprenticeships, etc.
  • Evidence of language certifications, including any language or literacy classes taken or other evidence of proficiency. Native language speakers (English or other languages) must provide documentation of language proficiency including language certifications or high school diplomas/college degrees showing that the native language was studied for credit. 
Please note that the situation remains in flux due to pending lawsuits.  We will work directly with affected clients about these issues in the coming weeks.  
Please note that this News Flash is provided for informational purposes only.  It does not constitute legal advice and is not a substitute for consulting with an attorney.

The Attorneys at RSST Law Group