On August 14, 2019, USCIS released the final rule outlining the new public charge policy USCIS will use to determine eligibility to adjust status and receive a green card. The new rule goes into place for all new applications filed on or after October 15, 2019. For all applications filed prior to this date, the previous rules regarding public charge remain in effect. This new rule will mainly impact those seeking permanent resident status through family member petitions. Beginning October 15, applicants must provide a “Declaration of Self-Sufficiency” when applying for a green card, in addition to the many forms and documents already required.

The new rule redefines who is considered a public charge. The old rule defined public charge as someone who was likely to become primarily dependent on the government for income support. The new rule defines public charge as someone who receives any number of public benefits for more than an aggregate of 12 months over any 36-month period of time. There is a specific list of programs that count towards the 12 months, which would lead to a determination of public charge. However, the new rule allows for adjudicating officers to consider, at their discretion, other types of programs not specifically named to be factored in as well. This expansion includes all cash aid programs, including not only federal but also state level assistance, Medicaid, nutrition and housing programs. In addition, each benefit received is counted on its own, even if a person is enrolled in several programs concurrently. For instance, if someone receives two different benefits in the same month, that would count as 2 months use of benefits towards the 12-month total.

A few exceptions are carved out. The first is for military families, who will not be penalized for using public benefits. Neither Medicaid for applicants under the age of 21 or while pregnant are considered, nor emergency medical care or disaster relief. Benefits received by family members of the applicant will not be considered in the public charge determination, only those received by the applicant. In addition, the public charge rule will not be applied to refugees, asylees, Iraqi & Afghan Special Immigrant Visa holders, victims of crime & trafficking, VAWA applicants or special immigrant juveniles.

The new guidelines are also much more expansive, with prior received benefits being used as only one of many factors that officers can use when determining, based on their own discretion, if an applicant may become a public charge. Officers will be instructed to consider a wide range of “positive” and “negative” factors, including financial status (credit scores and financial liabilities like a mortgage), size of family, age, education, skills and employment, English proficiency, medical conditions, availability of health insurance, and past use of immigration fee waivers.

The previous rule required only that a sponsor have an income above 125% of the federal poverty level to avoid a beneficiary relative from becoming a public charge, and the regulations allowed for a joint sponsor if the primary sponsor’s income did not meet this requirement. Under the new rule, a sponsor’s income that is over 250% of the federal poverty level is now considered to be a heavily weighted positive factor. For each additional dependent in the sponsor’s household, the minimum salary per year required goes up. As an example, a single mother with two children will need to make $65,000 to sponsor her sister to come to the United States and reach above 250% of the federal poverty level to obtain this heavily weighted positive factor.

The new rule does allow for joint sponsors, but the joint sponsor’s relationship to the applicant will be more heavily scrutinized to determine if they will in fact provide financial assistance when necessary. It also requires disclosure about other applicants that individual has sponsored for immigration benefits in the past, something previously not required. To put this in perspective, even a finding that a sponsor makes over 250% of the federal poverty level, and that an applicant has not used any public assistance programs, will not guarantee an approval for the applicant. The new public charge rule will increase the burden of applicants and immigration attorneys to document positive financial evidence, earning ability, and evidence demonstrating the relationship between joint sponsors and applicants.