This article includes recent public charge updates by the U.S. Citizenship and Immigration Services (USCIS). We answer frequently asked questions and address updates that may affect green card or permanent residency applications.
What is the Public Charge?
The Public Charge is a ground of inadmissibility that allows a USCIS officer to deny a green card or visa applicant if they believe that an applicant is likely to depend on government benefits in the future. Before approving a green card application, the USCIS officer looks at the public charge question.
Who Does the Public Charge Rule Affect?
The public charge rule affects people applying for a green card or permanent residency based on a family petition or a job. This includes Adjustment of Status petitions based on marriage.
The updated Form I-485 Adjustment of Status questions make it easier for the USCIS to see who may have possible public charge problems.
These seemingly “easy” form questions may cause applicants to overlook the risk involved. Providing such information to the USCIS may cause problems including a denial of green card or loss of permanent residency early in the application process.
Does the Public Charge Apply to Applicants at the Consulate?
Yes, Consular Officers also consider the public charge rule for permanent residency or visa applicants abroad at the US consulate.
What Does the USCIS Consider Under the New Public Charge Guidance?
Under the new Public Charge guidance, the USCIS officers now have a broad discretion to look at the total circumstances of a person including their age, income, job skills, health, household size, education, assets, and skills.
The officer can also consider an applicant’s use of income-based benefit programs. Examples are cash assistance, food assistance, public or assisted housing, and certain government-funded health insurance.
Improved Public Charge Screening Means More Green Card Denials
The I-485 form for Adjustment of Status and visa forms improves how the USCIS screens applicants when they apply.
First, the application form asks applicants to provide potential disqualifying information and reasons with their application.
This reduces the chances of unqualified applicants being approved because an inexperienced USCIS officer did not send a Request For Evidence (RFE) for information on an applicant’s disqualifying background.
Now it is easier for Immigration Officers to see which application should be denied as the applicants are self-reporting potential problems when they apply.
Also, this is particularly important since the USCIS says that they will no longer always issue an RFE or NOID before denying a case.
Important: Non-citizens and green card or visa applicants should speak to an immigration attorney before providing information to the USCIS even if you do not use government assistance or means tested benefits.
Quick Tip – Get Help Early
With the revised public charge process, applicants need to get legal help early. This way they can determine if they can apply safely and how to improve their chances of a successful application.
a) Get Legal Help Before You File Your Green Card Application
Getting legal help before you file for your green card application helps you sort out any potential problems. This way you can tackle problems before in advance.
At our immigration law office, Attorney Doreen A. Emenike can help you understand the public charge requirements and answer your questions about your situation.
b) Seek Legal Help Before Your Green Card Interview
Before your green card or immigration interview, discuss with your immigration attorney how to respond to possible public charge questions you may be asked.
Does using Medicaid or Medi-Cal count under the Public Charge Rule?
If you are using Medicaid or Medi-Cal based on your income, then it is a factor that the USCIS officer can take into consideration.
Read More: Recent Immigration Success Stories
What if My Children or Spouse Use Public Benefits or Medicaid or Medi-Cal?
If your US Citizen spouse or children use Medi-Cal or Medicaid, it does not mean an automatic disqualification. However, the USCIS officer may consider this nowadays if you financially support your relatives and they qualify for this benefit because of your income.
The use of public benefits may create concerns for the USCIS depending on the specific situation of an applicant. Factors such as who receives the benefit, household income, financial support responsibilities, and the type of benefit involved may all be relevant.
If you have questions about whether you should continue or stop using your benefits, you should speak to an immigration attorney for advice about your own situation.
Can a Joint Sponsor Help with the Public Charge Guidance?
Under the new public charge guidance, even if you have a joint sponsor, the officer can look at other factors to see if an applicant may likely seek future government assistance. So while a joint sponsor may still be useful, it is not a guaranteed solution to public charge concerns as previously.
Who Does the Public Charge Rule Not Apply To?
Here is a list of people that the public charge rule does not apply to:
- Citizenship or naturalization applications
- Asylee and Refugees Adjustment Applicants
- VAWA – Violence Against Women Applicants
- U visa Applicants
- T visa Applicants
- Special Immigrant Juvenile Status – SIJS
- DACA or Dreamer applicants
- Temporary Protected Status Applicants
Other exemptions may apply.
Read More: How to respond to a USCIS Request For Evidence (RFE)
Does Using Unemployment Insurance Negatively Affect My Application?
Another question we are asked at The Law offices of Doreen A. Emenike is whether using unemployment insurance will affect a green card or citizenship application negatively. The short answer is no, because it is an earned job benefit.
Unemployment Insurance is an earned benefit and should not generally affect an applicant negatively for public charge purposes. This is because it is based on your job earnings and is not government assistance. Use of unemployment insurance should not affect your green card application negatively.
Common Public Charge Misunderstandings
Myth: Using any government benefit automatically means denial.
Myth: Having a joint sponsor guarantees approval.
Myth: Benefits received by my U.S. citizen child never matter.
Myth: Public charge affects citizenship applications.
Conclusion and Legal Analysis by Attorney Doreen
The updated public charge guidance and immigrant visa forms will improve the screening process for USCIS officers, give officers more discretion and lead to greater denials. Additionally, there is a valid concern that it will also discourage many permanent residency and visa applicants whose applications may be denied from the beginning. It is important that applicants speak to an immigration lawyer as soon as possible in the application process to avoid unnecessary public charge problems.
Public charge determinations are rarely based on a single factor. Instead, immigration officers may evaluate a variety of circumstances when reviewing an application. What may appear to be a minor issue in one case could require closer analysis in another.
Applicants who have concerns about public benefits, sponsorship, income, household size, or related issues should seek individualized legal guidance before filing wherever possible.
For questions about your immigration matter, Attorney Doreen A. Emenike and her team are available to assist. www.emenikelaw.com
Related reading: USCIS Enhanced Security Screening – What To Know
