How Will the New Public Charge Rule Affect My Application?

Updated on 02/24/2021

Anybody who wishes to immigrate to the U.S.is subject to the public charge rule, which says that a Green Card cannot be granted to people who are likely to become a public charge.  This rule has been in place for more than a century, and while it does not specifically state what a public charge is, it is usually defined as someone who needs government assistance to meet basic needs such as food, shelter and healthcare.  In early 2020, the Trump administration redefined the public charge rule in a way that makes it much stricter, therefore, making it more difficult to obtain permanent residency.

New Public Charge Rule

What Does New Public Charge Rule Say?

This new interpretation defines a public charge as someone who has received any public benefit for more than 12 months during a 36-month period.  A public benefit is a monetary benefit from the federal government such as Supplemental Security Income, Temporary Assistance to Needy Families, Food Stamps, most forms of Medicaid and certain housing programs.  USCIS also considers how likely someone seeking a Green Card will use public benefits in the future, even if they never have in the past.

This new definition of the public charge rule is very controversial and is currently being challenged in court.  While the case is winding through the courts, there have been various rulings that alternatively block the new public charge rule from taking effect and allowing it to move forward.  The constant back and forth have made it very confusing for people trying to understand exactly which rules are in effect. 

As of this writing, USCIS is permitted to enforce this new definition while the court case is pending, but the Department of State cannot.  As a result, people applying for a Green Card through Adjustment of Status (processing for their Green Card inside the U.S.) are subject to these new rules but those applying for a Green Card at U.S. a consulate abroad are not.  In reality, most U.S. consulates have been closed to Green Card processing because of the COVID-19 pandemic, effectively blocking that option for most people.

The new public charge rule is subject to change due to future court rulings, with a good chance that the case will ultimately be decided by the Supreme Court.  While many people expect that the incoming Biden administration will attempt to reverse the new rule, the regulatory process for doing so could easily take a year or more.

Forms Related to Public Charge Rule

There are two USCIS forms and one DOS form related to the public charge rule: Form I-864, Form I-944 and DS-5540.  Based on your personal situation, you might have to submit I-864 and/or I-944. DS-5540 is not necessary to submit unless a U.S. consulate requires you to do so.

Form I-864, Affidavit of Support

Form I-864 is required for the majority of family-based Green Card applicants and some employment-based Green Card applicants.  It is completed by the sponsor and serves as an agreement between them and the U.S. government, where they promise that they will financially support you if that is necessary to avoid becoming a public charge.  Your sponsor must have an income at least 125% of the federal poverty level for their household size. To figure out whether your sponsor’s income/assets meet the sponsorship requirement under I-864, please click here.

The form asks questions about your sponsor’s employment, income and assets.  Assets only have to be listed if the sponsor’s income is insufficient.  Additionally, supporting evidence must be submitted, which usually includes the following:

  • Photocopies of federal tax return transcripts or federal tax return of sponsor’s income tax returns and form supplements for most recent tax year
  • Copies of all forms W-2 or 1099s
  • Documentation of any additional assets sponsor wants considered
  • Evidence to prove sponsor is a U.S. citizen/U.S. national or permanent resident

Through DYgreencard.com, you can have a complete I-864 package ready to file with USCIS. The I-864 form and its supporting documents will be fully reviewed by a skilled immigration lawyer. All you need to do is just answer a few questions online and upload documents to DYgreencard.com. Then we take of the rest. Learn more, or get started today!

Form I-944, Declaration of Self-Sufficiency

Form I-944 was released by USCIS in October 2019 and has been required on an off and on basis since February 2020.  Because it is new, many immigration lawyers still have limited familiarity with it.  Most Green Card applicants must now submit form I-944, though there are a few categories of applicants who do not, including asylees and refugees.

You will have to provide extensive information about your biographical details, family status, assets, finances, education, skills and other factors that USCIS will use to decide if you are likely to become a public charge.  They only weigh public benefits which have been used since Feb. 24, 2020. 

USCIS weighs factors positively or negatively depending on your response.  Due to the newness of the form, the formula still is not completely clear, but it is understood that having at least a high school diploma, employment history, English language skills, the ability to work, having never used public benefits, being of working age, in good health, having a small family, a good credit score, having no financial liabilities, health insurance and income at least 250% of poverty level are seen as positive factors.  The form is highly detailed so you should expect to spend several hours filling it out.

Based on your own situation, you will need to submit supporting evidence that applies to you such as:

  • Federal income tax returns or transcript
  • Evidence of assets
  • Documentation for liabilities and debts
  • Credit score report
  • Evidence related to bankruptcy
  • Proof of health insurance
  • Documentation of previously received public benefits
  • Evidence of U.S. degree or diploma, evaluation of equivalency to U.S. education or degrees for any foreign diplomas or degrees higher than high school diploma
  • Evidence of professional training, licensure or certification
  • Evidence of language proficiency
  • Evidence of retirement income

DS-5540, Public Charge Questionnaire

DS-5540 was designed to screen Green Card applicants who have their interview at a U.S. consulate.  As of this writing, there is a court order blocking its use, but that is subject to change.  This form asks many of the same questions found on the I-944, though it is not quite as extensive.  It asks questions about your health, household, assets, finances, education and skills and requires supporting documentation to back up your claims.

While it remains to be seen if the new public charge rule will be permanent, for the time being potential immigrants applying from within the U.S. must comply with them.  For some people, compliance will be mostly a nuisance due to the time that must be spent gathering supporting documents and completing forms.  But other people will find that it makes their dream of obtaining a Green Card much more difficult to achieve.  Whatsoever, DYgreencard.com can always assist you in your Green Card application. You can access its service through smartphone, pad, or desktop. Learn more, or get started today!

DYgreencard — Application preparation + lawyer review, at an affordable price.