Last week, USCIS’s plan to implement its new public charge rule and forms, including the dreaded I-944 Declaration of Self Sufficiency, was stymied by a temporary injunction blocking the revised guidelines. However, the nationwide ban only applied to adjustment of status cases inside the US. It technically did not prevent the Department of State from going forward with its own set of public charge rules published in an interim final rule that closely tracked the changes made by the Department of Homeland Security, scheduled to take effect October 15, 2019. (The Department of State regulates and oversees consular cases, that is, those cases which are scheduled abroad at US embassies around the world.) Fortunately, the Department of State recently announced that procedures would remain as is, for the time being, until approval of a new form which it will be requiring, has been secured. However, lest there be too much excitement, the new form, which will apply to consular cases, will likely be very similar and just as onerous as the I-944, which promises to be a nightmare for intending immigrants here in the US. We will obviously explore the I-944 in a future article, but applicants should be aware that a credit report will be required as well as inordinate documentation relating to the applicant’s financial status.
When and if the final rule is implemented, it will essentially codify into law what has largely already been the practice at many consulates around the world since the Foreign Affairs Manual (“FAM”) was revised. Some of the significant changes that came about with the FAM changes were a decreased emphasis on the affidavit of support and increased emphasis on a totality of factors test which incorporates arguably more grey areas. Officers are now expected to evaluate a number of factors to determine whether an applicant is more likely than not to become a public charge. The factors include the alien’s age; health; family status; assets, resources, financial status; education, and skills. The rule delineates what will be considered heavily weighted negative and positive factors. The heavily weighted negative factors include:
· The applicant is not a full-time student and is authorized to work, but unable to show that he/she is employed, has recent employment history, or reasonable chances of getting a job
· The applicant has received, or has been certified or approved to receive, one of more public benefits for more than 12 months within any 36 month period
· The applicant has been diagnosed with a medical condition that is likely to require extensive treatment or institutionalization or that it will interfere with the applicant’s ability to provide for him/herself, go to school, or work
· The applicant has no health insurance for use in the US and has neither the prospect nor resources to pay for reasonably foreseeable medical costs related to such medical conditions
· The applicant was previously found inadmissible or deportable on public charge grounds by an Immigration Judge or the Board of Immigration Appeals.
These rules are in addition to the changes intended to align with DHS’s new public charge rules expanding the umbrella of programs considered “public benefits.” If and when these new changes go into effect, applicants should expect many more obstacles to be raised by consular officers based on subjective judgements as to their health, age, education, and English proficiency.
The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.