USCIS Issues Stricter Public Charge Guidance for Green Card Applicants
U.S. Citizenship and Immigration Services on Tuesday issued updated policy guidance that will allow officers to consider an adjustment-of-status applicant’s receipt of a broad range of means-tested public benefits when deciding whether the person is likely to become a public charge.
The guidance, effective Sept. 18, applies to Forms I-485, the applications used by eligible immigrants in the United States to seek lawful permanent resident status, that are postmarked or electronically submitted on or after that date. It follows the Department of Homeland Security’s July 20 final rule rescinding the Biden administration’s 2022 public-charge regulation.
USCIS said the revised guidance is intended to align adjudications with what the agency described as Congress’s policy that immigrants should be self-sufficient and should not depend on taxpayer-funded public benefits to meet their needs.
The policy will affect many family-based and employment-based green card applicants, including spouses, children, and parents of U.S. citizens; relatives of lawful permanent residents; fiancé(e)s of U.S. citizens; diversity visa recipients; religious workers; skilled workers; professionals; investors; and certain special immigrants.
The public-charge ground generally does not apply to refugees, asylees, special immigrant juveniles, applicants seeking Temporary Protected Status, trafficking survivors with T visas, crime victims with U visas, Violence Against Women Act self-petitioners, and several other humanitarian or specially protected categories.
Broader benefit scrutiny
For benefits received before Sept. 18, USCIS officers will consider only public cash assistance for income maintenance and long-term institutionalization at government expense, according to the policy alert.
But for means-tested benefits received on or after Sept. 18, officers may consider “any and all” such benefits as part of a case-by-case review. USCIS lists potentially relevant benefits as cash assistance, public or assisted housing, food assistance, government-funded health coverage, financial aid for postsecondary education, and similar aid for which eligibility depends on income or assets.
The agency said Social Security, Medicare, and unemployment insurance are not means-tested public benefits for purposes of the public-charge analysis. It also said an applicant is considered to have received a benefit only when the applicant is listed as its beneficiary. Benefits received by an applicant’s children or other relatives generally will not be attributed to the applicant, though officers may assess household finances when a relative’s benefits reflect the applicant’s income, assets, or legal support obligations.
USCIS may also consider an applicant’s own application for, approval for, or certification to receive means-tested benefits in the future, even if the person did not ultimately receive them, according to the guidance.
Five mandatory factors
The Immigration and Nationality Act requires USCIS to weigh five statutory factors: age; health; family status; assets, resources, and financial status; and education and skills.
Officers also may consider a required Form I-864, Affidavit of Support, signed by a sponsor who agrees to use financial resources to support the intending immigrant. A sufficient affidavit of support is not necessarily dispositive, USCIS said, but the lack of a sufficient affidavit when one is required may independently lead to a public-charge finding.
The new policy says officers must make a prospective determination based on the “totality of the circumstances,” rather than relying on a bright-line rule. Other than the absence of a sufficient required affidavit of support, no individual factor can alone determine the outcome.
An applicant’s current or past use of means-tested benefits will be “highly relevant,” USCIS said, but it is not by itself proof that the person is likely to become a public charge. The agency said officers should assess whether the person can support himself or herself through work, household income, savings, assets, family support, private support, or other available resources.
The guidance states that a disability alone cannot be the sole basis for finding an applicant inadmissible on public-charge grounds. Similarly, a working-age applicant who is healthy, able, and willing to work would generally not be found likely to become a public charge solely because of low income or past benefit use, the agency said.
Bonds may be offered
If USCIS concludes that an adjustment applicant is inadmissible only because the person is likely to become a public charge, an officer may invite the applicant to post a public-charge bond.
The bond may be paid in cash or through a Treasury-certified surety company. USCIS said the amount will be based on the assistance the applicant could be eligible to receive over the next five years. Applicants may file Form I-945, Public Charge Bond, only after USCIS sends a Notice of Intent to Deny that specifically invites them to do so.
USCIS said it will not accept unsolicited public-charge bonds.
Different rules for earlier filings
Applications filed from Dec. 23, 2022, through Sept. 17, 2026, will continue to be decided under the 2022 public-charge rule and related guidance. Applications filed before Dec. 23, 2022, will be adjudicated under the 1999 interim field guidance.
The updated policy manual guidance replaces prior related guidance, including the 1999 interim field guidance, for applications covered by the new effective date. It is limited to USCIS adjudication of adjustment-of-status cases and does not govern public-charge decisions by the State Department in visa processing, Customs and Border Protection at ports of entry, or immigration judges in Executive Office for Immigration Review cases.