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  • Writer's pictureDunlap & Shipman

New Practice Area - IMMIGRATION LAW

The Department of Homeland Security (“DHS”) and the U.S. Department of State (“DOS”) have recently implemented a new rule that is anticipated to affect a substantial number of green card and visa applicants. The so-called “Inadmissibility on Public Charge Grounds” rule allows immigration officers to deny an applicant based on a determination that the applicant is likely to become a “public charge” after admission to the United States or adjustment of status to that of a legal permanent resident. Specifically, an applicant may be found “inadmissible” if, in the discretion of a reviewing officer, he or she is likely to receive public housing, food stamps, Supplemental Security Income, or other government benefits for more than 12 months in any 36-month period. The rule applies to petitions and applications filed or postmarked on or after February 24, 2020. 

In determining whether an applicant is likely to become a public charge, immigration officers now consider several factors which include the applicant’s age, health, family status, assets and liabilities, education, skills, proficiency in English, and whether the applicant has received government benefits in the past. Factors are broken down into positive and negative factors. For example, a person's age between 18 and 61 is considered a positive factor, while a person’s age outside of this range will be considered a negative factor. In most circumstances, applicants may be able to counter a negative factor with evidence of self-sufficiency. For example, an applicant who is over 61 years old might present evidence of the existence of independent financial resources, such as savings or income which is at least 125% of the Federal Poverty Guidelines. Certain factors will be weighted more heavily than others. For example, receipt of Medicaid benefits (with certain exceptions) or the existence of a medical condition with no evidence of insurance coverage or financial resources to pay for medical costs are considered heavily weighted negative factors and will play a significant role in an officer’s public charge determination.

After taking into consideration all information presented by an applicant, an immigration officer will make a determination regarding the applicant’s admissibility based upon the totality of circumstances, rather than any specific factor. It is important that an applicant for immigration benefits who is subject to the public charge rule timely gather all relevant documents and information and be prepared to present evidence and arguments to counter any negative factors. 

While DHS and DOS follow similar guidelines in the application of the public charge rule, a few variations exist. Applicants subject to the public charge rule who apply for adjustment of status within the United States are required to submit Form I-944, Declaration of Self-Sufficiency. Applicants undergoing consular processing will be prompted to complete Form DS-5540.

For further questions or information regarding the public charge rule or its potential effect on your case, please contact us for a consultation. 

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