Now that the Public Charge is a reality, anybody intent on applying for permanent residence must understand that immigration just got a whole lot harder. Under the new guidelines, which some have loosely called a “wealth test,” immigration officers are vested with extraordinary discretion in judging whether a green card applicant is likely to become dependent on the federal government for assistance. While there are certain classes of people who are exempt, the vast majority of green card applicants, especially those immigrating through family, are subject to the rule, whether applying inside the US through an Adjustment of Status process or abroad through Consular Processing.
Totality Of Circumstances Test
Under the Public Charge test, officers will be making a determination utilizing a “Totality of Circumstances” calculus. Although the Affidavit of Support (I-864) is still relevant, it is only one piece of evidence. At a minimum, officers must now evaluate a person’s
· Family Status
· Assets, resources, and financial status
· Education and skills
· Prospective Immigration Status and Expected Period of Admission
· Affidavit of Support
Emphasis will be now be given primarily to the first six factors, notwithstanding that a petitioner/sponsor may make well over 125% of the federal poverty guideline level as set forth on the Affidavit of Support, which is the last factor.
Heavily Weighted Factors
Additionally, the government has designated some Heavily Weighted Negative as well as Heavily Positive Factors that can heavily impact an officer’s findings. The heavily negative factors, according to USCIS, are currently as follows:
· The alien is not a full-time student and is authorized to work, but is unable to demonstrate employment, recent employment history, or a reasonable prospect of future employment;
· The alien has received or has been certified or approved to receive one of more public benefits for more than 12 months, in the aggregate, within any 36 month period, beginning no earlier than 36 months before the alien’s application for admission or adjustment of status, starting on or after February 24, 2020;
· The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide and care for him or herself, to attend school, or to work; and the alien is uninsured and has neither the prospect of obtaining private health insurance, nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition; or
· The alien was previously found inadmissible or deportable based on the public charge ground by an immigration judge or the Board of Immigration Appeals.
USCIS has also set forth three heavily weighted positive factors that can impact an officer’s findings. They are currently:
· The alien’s household has income, assets, or resources, and support (excluding any income from illegal activities, for example, proceeds from illegal gambling or drug sales, and any income from public benefits) of at least 250 percent of the federal poverty guidelines for alien’s household size;
· The alien is authorized to work and is currently employed in a legal industry with an annual income (excluding any income from illegal activities, such as proceeds from illegal gambling or drug sales) of at least 250 percent of the federal poverty guidelines for the alien’s household size; or
· The alien has private health insurance except that private health insurance must be appropriate for the expected period of admission and does not include health insurance for which the alien receives subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act (ACA).
The Department of State’s guidelines, as found in the Foreign Affairs Manual (FAM), closely tracks the USCIS’s test.
Going forward, any intending immigrant must be cognizant of these new rules. Given the highly subjective nature of the factors as well as heightened level of scrutiny, aspiring immigrants should diligently assemble any proof that they will be self-sufficient if granted admission to the United States.