New Public Charge Questions Add More Challenges For Adjustment Of Status Applicants – Work Visas

On December 9, 2022, U.S. Citizenship and Immigration Services
(USCIS) announced the release of a new version (12/23/22) of Form
I-485, Application to Register Permanent Residence or Adjust
Status, in connection with a new regulation addressing the public
charge ground of inadmissibility, which would take effect on
December 23, 2022.

When must the new Form I-485 be used for filing?

USCIS advised that any I-485 application filed on or
after December 23, 2022, must use the new
version of Form I-485, which reflects an edition date of December
23, 2022. Failure to do so will result in the USCIS rejecting the
filing.

On December 19, 2022, USCIS issued a follow-up Policy
Alert regarding implementing the new public charge rule
visa changes to the USCIS Policy Manual and provided a resources page for reference.

Why are new questions appearing on the Form?

On September 8, 2022, the U.S. Department of Homeland Security (DHS) issued a
new final rule to be published in the Federal Register on September 9,
2022, addressing the public charge ground of inadmissibility
found at INA §212(a)(4). The final rule came into effect on
December 23, 2022. The final rule announcement also noted that
USCIS would issue a revised Form I-485 to collect additional
information, including questions related to the public charge
statutory factors and amended Policy Manual guidance.

What is the “new” public charge rule?

The public charge ground of inadmissibility is found at
§212 of the Immigration and Nationality Act, as amended (INA).
INA §212 provides several grounds for a noncitizen being
considered “inadmissible” to the United States. The
public charge ground of inadmissibility applies to applicants for
visas, admission, and adjustment of status, unless the noncitizen
is exempt. Most commonly, the public charge inadmissibility
determination is made as part of the adjustment of status
application process when noncitizens apply to adjust their status
to lawful permanent resident.

INA §212(a)(4)(A) states that a noncitizen “likely at
any time to become a public charge is inadmissible.” INA
§212(a)(4)(B) states that, at a minimum, adjudicators should
consider the applicant’s “age, health, family status,
assets, resources, and financial status; and education and
skills” when determining whether a noncitizen is likely to
become a public charge. Additionally, an adjudicator “may also
consider any affidavit of support” under INA §213(a) when
applicable, noting that in cases where an affidavit of support is
required, a noncitizen’s failure to provide a sufficient
affidavit of support from the petitioner and any additional
sponsor(s) makes the noncitizen inadmissible regardless of
other factors.

For decades, USCIS interpreted the meaning of “likely to
become a public charge” based on a 1999 Interim Field Guidance
release. Under this guidance, a noncitizen would be considered
likely to become a public charge if DHS determined that they were
likely to become primarily dependent on the government for
subsistence. For example, it would apply if the individual was
likely to become dependent on direct cash assistance, like
Supplemental Security Income (SSI) or Temporary Assistance for
Needy Families (TANF), or to individuals who rely on
Medicaid-financed “long-term institutionalization,” such
as a nursing or psychiatric facility. A 2019 rule put into effect
by the Trump Administration sought to change this longstanding
guidance, which significantly expanded the policy to include anyone
who used a broader array of public benefits for more than 12
cumulative months over any 36 months. The courts held up the 2019
rule, but the Biden Administration ultimately rescinded it. The
“new” 2022 public charge rule essentially restores the
status quo.

Under the new rule, “likely at any time to become a public
charge” means likely at any time to become primarily
dependent on the government for subsistence, as
demonstrated by either the receipt of public cash assistance
for income maintenance or long-term institutionalization
at government expense. According to the preamble to the final
rule, primarily dependent “connotes significant reliance on
the government for support, and means something more than
dependence that is merely transient or supplementary.”

For purposes of a public charge inadmissibility determination,
“public cash assistance for income maintenance”
means:

• Supplemental Security Income (SSI);




• Cash assistance for income maintenance under the Temporary
  Assistance for Needy Families (TANF) program; or




• State, tribal, territorial, or local cash benefit programs for
  income maintenance, commonly called “General
  Assistance.”¹

For a public charge inadmissibility determination,
“long-term institutionalization at government expense”
means government assistance for long-term institutionalization (in
the case of Medicaid, limited to institutional services under
section 1905(a) of the Social Security Act) received by a
beneficiary, including in a nursing facility or mental health
institution. Long-term institutionalization at government expense
is the only category of Medicaid-funded services (limited to
institutional services under section 1905(a) of the Social Security
Act) considered in a public charge inadmissibility
determination.²

USCIS Adjudicators, using a totality of the circumstances test,
will consider the statutory minimum factors, an affidavit of
support when required, and the additional factor of current and/or
past receipt of public benefits. However, this additional factor is
limited to the applicant’s receipt of public cash assistance
for income maintenance or long-term institutionalization at
government expense, with several exemptions, such as the
Supplemental Nutrition Assistance Program (SNAP).

The final rule has included new helpful provisions that address
concerns with aspects of the public charge framework. For example,
an adjustment applicant with a disability, as defined by
Rehabilitation Act §504, would not be deemed a public charge
absent other disqualifying factors. The Final Rule also provides
definitions of the minimum statutory factors USCIS will
consider.

Importantly, any USCIS denial under the public charge
inadmissibility ground must be in writing, “reflect
consideration of each of the factors outlined (under the rule), and
specifically articulate the reasons for the officer’s
determination.”

Who is subject to the public charge admissibility ground?

Unless specifically exempted, all applicants for
adjustment of status, including those applying through family-based
petitions, employment-based petitions, and diversity applications,
are subject to the public charge ground of admissibility. The appendices to Part G of Volume 8 of the USCIS
Policy Manual provide helpful charts and guidance regarding when an
affidavit of support is necessary.

The vast majority of both employment-based and family-based
petitions are subject to the public charge ground of
inadmissibility. In the employment-based categories,
noncitizens are generally subject unless the applicant is adjusting
based on an employment-based petition where the petition is filed
by either a qualifying relative, or an entity in which such
relative has a significant ownership interest (5 percent or more).
The applicant must also qualify for a category exempted under
INA §212(a)(4)(E) (T
nonimmigrants, U nonimmigrants, and VAWA self-petitioners, for
example) at both the time of filing and adjudication of Form I-485.
The applicant is not subject to INA 212(a)(4) (but is still
required to file Form I-864).³ A qualifying relative
means a husband, wife, father, mother, child, adult son, adult
daughter, brother, or sister. Significant ownership interest means
an ownership interest of five percent or more in a for-profit
entity that filed an immigrant visa petition to accord a
prospective employee an immigrant status under section 203(b) of
the Act.³

Even where exempt, some noncitizens applying to adjust status
may still be required to submit an Affidavits of Support under
Section 213A of the INA. This includes noncitizens whose
employment-based petition was filed by a relative or by an entity
in which the noncitizen’s relative has a significant ownership
interest.

The public charge ground of inadmissibility does not apply to
certain applicants for visas, admission, and adjustment of status
applicants based on statutory or regulatory authority. For
example:

• Asylees and refugees




• Applicants adjusting under the Cuban Adjustment Act




• Special immigrant juveniles




• Applicants seeking Temporary Protected Status (TPS),




• Victims of human trafficking (T nonimmigrants),




• Victims of qualifying criminal activity (U nonimmigrants),




• Certain ambassadors and diplomats.

What are the Public Charge Changes to the new Form I-485?

The new 12/23/22 edition of the I-485 Form includes a series of
questions under Part 8 to ascertain whether an applicant for
adjustment of status is inadmissible to the United States (U.S.) on
public charge grounds. The new questions are:

61.Are you subject to the public charge
ground of inadmissibility under INA section 212(a)(4)?
Please refer to the detailed explanation above. In general,
most employment-based and family-based applicants will be subject.
This question is challenging at best for any applicant. USCIS
includes appendices to Volume 8, Part G of its Policy
Manual regarding the interpretation of this question for
employment-based, family-based, special immigrant, refugee, asylee,
parolee, and other adjustment applicants. Certainly, the completion
of the Form itself becomes far simpler if the answer is no to
question 61, since applicants answering in the negative may skip to
question 69.a.

62. What is the size of your household?
According to the I-485 Form Instructions, the following
individuals should be included in your household size:

• You;




• Your spouse, if physically residing with you;




• Your parents, if physically residing with you;




• Your unmarried siblings under 21 years of age, if
  physically residing with you;




• Your children as defined in INA 101(b)(1), if physically
  residing with you;




• Any other individuals who list you as a dependent on their
  federal income tax return.

63. Indicate your annual household
income. Applicants are instructed to check an income
range based on the household’s total income. According to the
I-485 Form Instructions, you may include income provided to your
household from sources who are not members of your household,
including but not limited to alimony or child support. You must
exclude any income from Supplemental Security Income (SSI);
Temporary Assistance for Needy Families (TANF); State, Tribal,
territorial, or local cash benefit programs for income maintenance
(often called “General Assistance” in the State context,
but which also exist under other names). You must also exclude any
income from illegal activities or sources, such as proceeds from
illegal gambling or drug sales.

64.Identify the total value of your
assets. Applicants are instructed to check the
appropriate box for the total value of household assets. When
considering the applicant’s financial status, USCIS also
considers the noncitizen’s household’s assets and
resources, for example, investments or home equity, excluding any
assets from illegal activities or sources, such as proceeds from
illegal gambling or drug sales. USCIS also considers the
noncitizen’s household’s liabilities, both secured and
unsecured, such as loans, alimony, and child support
payments.

65. Identify the total value of your household
liabilities (including both secured and unsecured
liabilities). Applicants are instructed to check the
appropriate box for the total value of household liabilities. See
explanation above.

66. What is the highest degree or level of school you
have completed?

67. List your certifications, licenses,
skills obtained through work experience, and educational
certificates. According to the I-485 Form
Instructions, applicants are to list all of your certifications,
licenses, skills obtained through work experience, and educational
certificates. This includes but is not limited to your workforce
skills, training, licenses for specific occupations or professions,
foreign language skills, and certificates documenting mastery or
apprenticeships in skilled trades or professions. Educational
certificates are issued by an educational institution (or a
training provider) and certify that an occupation specific program
of study was completed.

68.a. Have you ever received
Supplemental Security Income (SSI), Temporary Assistance for Needy
Families (TANF), or State, Tribal, territorial, or local, cash
benefit programs for income maintenance (often called “General
Assistance” in the State context, but which also exist under
different names)?

68.b. Have you ever received long-term
institutionalization at government expense?

68.c. If you answer to Item Number 68.a. is
“Yes,” list the benefit(s) you received, the start and
end dates of each period of receipt, and the dollar amount of
benefits received.

68.d. If your answer to 68.b. is “Yes,” list
the name, city, and state for each institution, the start and end
dates of each period of institutionalization, and the reason you
were institutionalized.

Item Numbers 68.a. – 68.d. are only
asking about public benefits (in other words, public cash
assistance for income maintenance and long-term
institutionalization at government expense) you received in the
past or are currently receiving at the time the Form I-485 is
filed, and where you were/are a listed beneficiary. Do not
include any public benefits for which you are not listed as a
beneficiary, even if you assisted with the application.
Do not include benefits that you only applied for, or were
approved to receive in the future but have not received in the past
and/or are not currently receiving. Do not include
public benefits you received only on behalf of another
individual.

USCIS guidance also emphasizes on its resource page that
public assistance for COVID-19 testing, vaccinations, or treatment
is not considered in evaluating the public charge criteria. Nor
does USCIS consider public assistance in other forms if related
explicitly to COVID-19, such as food, housing, cash assistance,
rental assistance, tax credits, stimulus payments, unemployment,
and financial aid grants to students, the Paycheck Protection
Program, and student loan forbearance.

Moral of the Story

These examples should give applicants pause regarding the
correct completion of Part 8 of the new Form I-485, and it is
prudent for applicants to seek competent legal counsel. Certainly,
the public charge section of the adjustment application requires a
careful review for correct completion. In addition, the
applicant’s statement requiring signature under penalty of
perjury is extensive in Form I-485 on page 17. Applicants not only
swear that all information on the application is correct but also
that all information provided with the application is complete,
true, and correct.

In addition, it is also important to remember that USCIS may
reject or deny an adjustment application for failure to submit
requested evidence or supporting documents as stated in the
instructions to Form I-485 and as stated in 8 CFR
§103.2(b)(1). Currently, the USCIS Policy Guidance states that
noncitizens are not required to submit any specific evidence
relating to their household’s income, assets, and liabilities;
however, USCIS may request additional evidence on a case-by-case
basis if more information is needed to make a public charge
inadmissibility determination. The end result of these I-485
changes will add time and potentially increase exposure to an error
by applicants and should be approached with care and caution.

Footnotes

1. See 8 CFR §212.21(b). USCIS does not consider
benefits that are not referenced above when making a public charge
inadmissibility determination. See 8 CFR
§212.22(a)(3).</p>

2. See 8 CFR §212.21(c)

3. 8 CFR §213a.1.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.