Form I-944 and the Public Charge Regulations

The Form I-944 Declaration of Self-Sufficiency is a tool used by the Department of Homeland Security (“DHS”) to scrutinize foreign nationals applying for adjustment of status (“green cards”) by determining if the applicant is, or is likely at any time to become, a “Public Charge” meaning that, given the totality of the person’s circumstances, it is probable that they will receive one or more public benefits for more than 12 months in the aggregate within any 36 month period after becoming a permanent resident.

Family and Employment-based Adjustment of Status applicants are subject to the Public Charge rule.

The following categories of applicants are exempt:

  • Refugees and Asylees;
  • Certain T and U nonimmigrant visa holders;
  • Individual self-petitioners under the Violence Against Women Act (except in certain employment-based categories);
  • Special immigrant juveniles;
  • Afghan or Iraqi interpreters of Afghan or Iraqi nationals employed by or on behalf of the U.S. government;
  • Applicant’s seeking Temporary Protected Status;
  • Aliens seeking registry;
  • American Indians born in Canada; and
  • Applicants seeking adjustment under the Cuban Adjustment Act. [1]

DHS will assess Public Charge based on the following factors:

  • Age;
  • Health;
  • Family status;
  • Assets, resources, and financial status;
  • Education and skills;
  • Prospective immigration status and expected period of admission;
  • A sufficient Affidavit of Support (Form I-864), when required; and
  • The presence of heavily weighted positive and negative factors.

Examples of heavily weighted positive factors include:

  • Household Income, Assets, Resources, or Support of At Least 250% of the Federal Poverty Guidelines;
  • Individual Income of At Least 250% of the Federal Poverty Guidelines; and
  • Private Health Insurance.

Examples of heavily weighted negative factors include:

  • Lack of Employability;
  • Receipt of Public Benefits;
  • Diagnosis of a Significant Medical Condition and a Lack of Private Health Insurance; and
  • Previous Finding of Inadmissibility or Deportability Based on the Public Charge Ground in Removal Proceedings.

Applicants must submit evidence for each factor to prove they will not become a Public Charge in the future.

If DHS deems the applicant to be a Public Charge, the applicant must submit Form I-945 with a $25 filing fee and must pay a bond determined by DHS of at least $8,100. This can be in the form of a cash or surety bond. The purpose of the bond is to ensure that the applicant does not become a Public Charge; if the bond is breached, the U.S. government will request payment.

The Public Charge regulations published by DHS and the Department of State (“DOS”) went into effect on February 24, 2020. The regulations require that applicants for adjustment of status in the U.S. who are not exempt from a Public Charge assessment submit Form I-944 Declaration of Self-Sufficiency and applicants for immigrant visas at US Consulates abroad who are not exempt submit Form DS-5540 Public Charge Questionnaire.

The Public Charge regulations are currently being litigated in federal court and have undergone numerous changes since they took effect on February 24. As of the date of this alert, the Public Charge regulations apply as follows:

For Adjustment of Status applications:

  • In New York, Connecticut, and Vermont the regulations are enjoined (not in effect) based on an August 4, 2020 decision of the United States Court of Appeals for the 2nd Circuit. These three states have temporarily adopted the 1999 Public Charge guidance. For information on the 1999 guidance, see https://www.govinfo.gov/content/pkg/FR-1999-05-26/pdf/99-13202.pdf.
  • The rest of the country continues to be bound by the regulations, although USCIS has not updated its website as of this writing to reflect the renewed implementation of Form
    I-944.

For Consular Processing of Immigrant Visas at Overseas Posts:

  • On July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY) issued a preliminary injunction prohibiting the implementation of the 2018 Foreign Affairs Manual (FAM) revisions on Public Charge, the DOS rule on visa ineligibility on Public Charge grounds from October 11, 2019, and the presidential proclamation on health insurance coverage. DOS continues to be enjoined from applying the Public Charge Rule until further order of the court.

For comprehensive information on the Public Charge rule, see https://www.uscis.gov/policy-manual/volume-8-part-g.

[1] For comprehensive information regarding the Public Charge Ground of Inadmissibility, including a full list of individuals who are exempt from the Public Charge rule, see https://www.uscis.gov/policy-manual/volume-8-part-g.

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Sheila Starkey Hahn

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Sheila Starkey Hahn has devoted her entire legal career to the practice of immigration law. With offices in up-state New York, Memphis and Washington DC, Ms. Starkey Hahn focuses her practice on employment-based immigration. She assists established c…

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