public charge rule and covid-19

By Jessica Suotmaa 0

The “Public Charge” rule in a nutshell is how new green card applicants will be judged based on how financially self-sufficient they are, and consequently how likely they are to become reliant on welfare.  We have previously covered the new Public Charge Rule that was to be enforced since February 24, 2020:

With our current situation due to COVID-19, at least our home state of California has widened the reach of unemployment benefits and even announced an eviction moratorium until September 30, 2020, it’s hard to imagine the possibility of a long-time awaiting immigrant to lose the opportunity of permanent residence in the United States due to coronavirus induced financial difficulties.

Many have suffered job losses, illness, and other hardships as a result of the COVID-19 pandemic, which was declared a public health emergency on January 31st, 2020.  Here’s what we know:

On July 29th, 2020, a federal judge blocked the “Public Charge” rule from being enforced.  This block also applies to the rules regarding private health insurance for visa applicants.

United States Citizenship and Immigration Services (USCIS) announced the following:

  • USCIS will not reject or deny any green card application (form I-485) based on the public charge rule, even if it was filed after February 24, 2020;
  • USCIS will not reject or deny any green card application that is missing the new public charge form (I-944) or includes incomplete information;
  • USCIS will continue to process permanent residence applications according to rules prior to the release of the Public Charge Rule;

In the same announcement, USCIS stated that it would apply the Public Charge Rule to applicants applying from abroad after February 24, 2020.

 

If you have any questions regarding your green card application or the Public Charge Rule, please contact our office to speak with an experienced immigration specialist.

Who and What is exempt from the Public Charge rule

By Jessica Suotmaa 0

On Monday, February 24, 2020, the new United States Citizenship and Immigration Services (USCIS) Public Charge rule goes into effect. While we’ve written about it in-depth before, we would like to assure our readers which services and benefits are exempt from the rule, and who the rule does not affect. This article serves to clearly summarize all the public benefits you do not need to be worried about.

Let’s start with who needn’t be worried about the a Public Charge rule:

  1. Asylees and Refugees
  2. Victims of Trafficking
  3. Victims of Domestic Violence
  4. Anyone granted relief under the Cuban Adjustment Act, the Nicaraguan and Central American Relief Act and the Haitian Refugee Immigration Fairness Act

Also, please note that the Public Charge rule applies to individuals trying to enter the U.S , adjust status, or apply for permanent residence. It does not affect your green card renewal (unless you’re absent for 6 months or longer) or citizenship application (naturalization).

Holders of U-visas, T-visas, or those who have TPS, or Special Immigrant Juvenile Status also need not worry about the public charge rule affecting their visas.

Next, let’s look at which benefits are exempt from the rule:

  1. State or local health plans (e.g. Medi-Cal)
  2. Children’s Health Insurance Program (CHIP)
  3. Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
  4. School lunch programs
  5. Shelters
  6. Food banks

In other words, the Public Charge Rule looks at the age, health and income of the incoming immigrant and checks for the following public assistance programs:

  • Supplemental Nutrition Assistance Program (SNAP, EBT, Food Stamps)
  • Federal Public Housing Program or Section 8 Housing
  • Medicaid (except emergency services, children under 21 years of age, pregnant women, and new mothers)
  • Cash Assistance Programs

Any benefit or assistance program not listed above will not be counted towards the public charge. If you’re not sure though, ask us!

form i-944 public charge

By Jessica Suotmaa 0

After finalizing the new Public Charge of Inadmissibility rule, United States Immigration and Citizenship Services (USCIS) has announced that new green card applicants will be required to file a “declaration of self-sufficiency”.  The not-yet-released Form I-944 is an additional requirement for all Form I-485 Application to Register Permanent Residence or Adjust Status submissions starting October 15, 2019.  In this article, we will examine the September 26, 2019 draft copy of the Form I-944, Declaration of Self-Sufficiency and its accompanying I-944 instructions.

Note: USCIS has not released the final version of the Form I-944 and Instructions to Form I-944 and the contents of this article is based on just one of many draft copies of the two documents. 

Who has to file a Declaration of Self-Sufficiency?

  • Any adjustment of status or green card applicant filing with a Form I-485;
  • Any non-immigrant category affected by the Public Charge rule, such as: H1-B, L-1, L-2, and H-4;
  • Any visa category affected b y the Public Charge rule, such as F-1 visa and OPT holders;
  • Any applicant filing for an extension of one of the above could be served a Request for Evidence (RFE) demanding a Form I-944

What do I need to prepare for the Form I-944?

The following information will be asked for on the form:

  • Basic: name, alien registration number (A number), social security number (SSN), etc.
  • Household: marital status, household members, household income, etc.
  • Financial: assets, liabilities, income, credit score, bankruptcy, etc.
  • Education: language skills, certifications, degrees, etc.
  • Employment: career prospects, work history, retirement, etc.
  • Health: medical conditions, medical history, health insurance, etc.
  • Public Benefits: use of discontinued use of public benefits, etc.

Now let’s break down each section to see what you’ll need to prepare for in terms of both information and supporting documents.

  • Basic information required on the form include any personal information already entered on your other USCIS forms, including the I-485, Application to Register Permanent Residence.  The only difference is that this form requires you to authorize the Social Security Administration (SSA) to verify your social security number.

Documents you may need: SSN card, passport, birth certificate, local ID, marriage certificate

  • Household information includes all members of your household, their basic information (A numbers), and any immigration benefits they are currently applying for or have previously received.  Household information can also include anyone who claims you as a dependent on their federal income tax returns.

Documents you may need: prior year tax returns

  • Financial information includes assets, liabilities, and resources for the household as a whole. This means anyone within your household will need to provide a list of their assets, liabilities, and resources.
    • Any income that is in addition to what was reported on your federal income tax returns needs to be further listed and supported with documentation. A good example might be child support payments.
    • If your household has failed to file an income tax return, you’ll need to provide an explanation.
    • If you earned income by working illegally without a valid work permit, you’ll need to provide an explanation.
    • Any income, debts, or losses from gambling will require additional documentation as well.

Documents you may need: pay stubs, W2s, prior year tax returns, court documents, W2-Gs, 1099s

  • Financial assets include real estate property, bank accounts, trusts, stocks, retirement accounts, etc.
  • Financial liabilities include loans, mortgages, car loans, credit card debts, student loans, etc.

Documents you may need: credit report, deeds, bank statements, stock/bond certificates, notes, bankruptcy documents, property appraisals, mortgage statements, lien releases

  • Education information includes your overall education history including any language certificates, occupational and vocational skill certificates, degrees, etc.

Documents you may need: high school diploma, bachelor’s/master’s/PHD degrees, transcripts, certificates, licenses, foreign degree evaluation

  • Employment information includes your current employment status, a complete work history, any occupational licenses/certificates/degrees, any current non-immigrant visa approvals, and plans for retirement

Documents you may need: Form I-140 Approval Notice, licenses, certifications, resume, W2s, recommendation letters, pension income statements

Health information includes your medical history and your medical insurance coverage.

Documents you may need: doctor’s reports, medical test results, vaccination records, health insurance verification letter, Form 1095-B, Health Coverage, Form 1095-C, Employer-Provided Health Insurance
Offer and Coverage Form 1693

  • Public Benefits information is a list of any and all public benefits you and your accompanying dependents have previously used, currently use, or plan on using in the future. These benefits can include: social security, medicare, section 8 housing, food stamps, general assistance, any benefit for institutionalization for long-term care at government expense, for example, Intermediate Care
    Facilities for People with Intellectual disability (ICF/ID), Nursing Facility (NF), Preadmission Screening & Resident Review (PASRR), Inpatient Psychiatric Services for Individuals Under Age 21, and Services for individuals age 65 or older in an institution for mental diseases, public housing, and even USCIS application fee waivers.

Documents you may need: documentation of any public benefit received, explanations/declarations explaining your situation

 

The Form I-944 is a free form with no additional fees that does not replace the Form I-864, Affidavit of Support, but is almost as lengthy. USCIS estimates the amount of time it takes to fill out a Form I-944 is 4.5 hours, but that’s assuming you already have all of your supporting documentation.  Submitting a form without sufficient documentation can lead to a denial based on insufficient evidence. Ensure you’re prepared for your application by gathering information now, rather than later!

Still have questions? Ask us what we, at Lum Law Group, can do for you!

 

 

 

What does it mean to sponsor an immigrant?

By Jessica Suotmaa 0

In applying for legal immigration status, there are so many forms and formalities that are necessary that we often get in the habit of just verifying basic information and signing on the dotted line. However, if you’ve been asked to “sponsor” someone, whether a family member, distant relative, or community member, you should know what it means.

Many people seem to believe that to sponsor an intending immigrant means to “vouch” for a buddy. As in, I know he’s good for his money; or I know he’ll work hard once he gets his work permit. But that is not what sponsorship means in U.S. immigration.

Declaration of Financial Support

Sponsoring an immigrant means you are their financial sponsor.  Think of it as hosting an au pair or an international student in your home. You are responsible for that person’s living expenses. You are responsible for that person’s medical expenses. That person does not have work authorization and you must provide them with food, shelter, and spending money.  You’re that person’s bank.

If you’re thinking to yourself that it’s OK, it’s only for a short while, think again. The United States Immigration and Citizenship Services (USCIS) website specifically outlines that immigrant sponsorship lasts until the immigrant becomes a U.S. citizen, or has clocked in a certain number of work quarters–usually lasting ten years.

So sponsoring an immigrant by filling out the Form I-864, Affidavit of Support and providing your tax records means you’re liable for that person’s expenses for up to ten years.

If you’ve ever wondered why the form is so detailed, and why you need to turn in your tax returns or financial documents, now you know it’s because you’re financially responsible for the immigrant. By proving you can afford to sponsor the immigrant, you commit to paying their bills. Which brings us to an important point, don’t let the immigrant become a public charge.

Read: What does Public Charge Mean? 

Don’t Sponsor a Public Charge

Let’s say you sponsor an immigrant and they end up going on welfare. They apply for public benefits, such as Medi-Cal and food stamps, becoming a “public charge”.  This shouldn’t happen because you vouched for that immigrant. You told the government that you will cover all of their costs, including any medical issues. As a result, you may have to pay back the government all the benefits the immigrant you sponsored received.

If an immigrant you sponsored receives any means-tested public benefits, you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency or the immigrant can sue you in court to get the money owed. (USCIS)

Not Everyone Can be a Sponsor

If you’re not directly related to the immigrant, you can only be a joint sponsor. Joint sponsors pool their resources with the main sponsor to support the immigrant. Joint sponsors have to meet the same requirements and are just as liable for the immigrant’s finances.

If your legal professional offers to help you find a sponsor, find a new one. If they say they can provide the affidavit for you for a set fee, don’t pay them.  They’re charging you for illegal practices and you’re the one who will be in trouble.

Read: How to Find a Good Legal Professional

If you’re not clear on what it means to be a financial sponsor, if someone’s asked to fill out the Affidavit of Support on their behalf, or if you have questions on the application process, contact an experienced immigration lawyer today!

What does public charge mean?

By Jessica Suotmaa 0

We have noticed conflicting information regarding the recent proposed changes to the existing public charge inadmissibility grounds. To read the actual notice published on October 10, 2018, the Notice of Proposed Rulemaking, from United States Citizenship & Immigration Services (USCIS), please click here. We hope this article will clarify the key questions our clients ask us regarding the current public charge policy, the proposed public charge rule, and how the changes may affect their applications, requests, and motions for adjustment of status.

What does “Public Charge” mean?

A “public charge” is a person who may become dependent on government handouts based on a number of factors, such as whether the person has already received government assistance.

The government determines whether or not an alien will become a Public Charge by considering the following:

  1. Whether the alien currently receive government cash assistance;
  2. whether the alien have received government cash assistance in the past;
  3. the alien’s age;
  4. the alien’s health;
  5. the alien’s family status;
  6. the alien’s assets;
  7. the alien’s resources;
  8. the alien’s financial status; and
  9. the alien’s education and skills.

When does “public charge” inadmissibility matter?

For immigration purposes, “public charge” applies when USCIS has to determine an alien’s admissibility, which can happen in two situations:

  1. When the alien applies to enter the United States;
  2. When the alien applies to adjust status to permanent residence (green card)

The “public charge” inadmissibility does not apply for naturalization purposes (citizenship applications).

What counts towards making one a “public charge”?

Here are a few key factors that count toward whether an alien is considered a public charge:

  • Government cash assistance for the alien;
  • Government cash assistance for the alien’s family if the alien’s overall household income is below Federal Poverty Guidelines;
  • Supplemental Security Income (SSI), such as:

What government benefits do not count towards “public charge”?

USCIS outlines the following non-cash programs as supplemental to your existing income, and therefore do not count towards making an alien a “public charge”:

Cash benefits that you earned also do not count towards public charge. Examples of earned cash benefits include social security benefits, unemployment benefits, government pensions, and veterans’ benefits.

But I’m a refugee/asylee and have no money–will I be denied for being a “public charge”?

USCIS states that the public charge inadmissibility grounds do not apply to everyone and that certain groups may be allowed to enter or adjust status despite falling under the “public charge” determination. These groups include:

  1. Refugees;
  2. Asylum applicants;
  3. Refugees and asylees applying for green cards;
  4. Amerasian Immigrants;
  5. Anyone with approved relief under CAA, NACARA, HRIFA;
  6. T-visa applicants;
  7. U-visa applicants;
  8. T-visa holders trying to adjust status (green card);
  9. U-visa holders trying to adjust status (green card);
  10. Applicants for Temporary Protected Status;
  11. Certain applicants under LIFE Act Provisions.

What if I am in removal proceedings (immigration court)?

The current regulations for determining whether an alien in removal proceedings is a public charge are more strict.  The Board of Immigration Appeals (BIA) has determined that inadmissibility based on public charge is based on the “totality of the alien’s [financial] circumstances at the time of […] application.”

In addition, aliens in removal proceedings can be ruled as public charges if any of the following circumstances apply:

  • mental disability;
  • physical disability;
  • advanced age; or
  • other fact “reasonably tending to show that the burden of supporting the alien is likely to becase on the public”

What are the proposed changes to the existing public charge grounds?

The impact of the proposed rule is twofold:

  1. It would tighten the way the government determines whether you will ever become a public charge;
  2. It would make it more difficult for certain individuals to obtain visas to enter the United States.

For any non-immigrant alien who is already in the U.S. and who may be considered a “potential public charge”, the proposed changes will disallow any extension of stay in the same visa category, hinder them from changing to another non-immigrant visa classification, and prevent them from adjusting their status (green cards).

How will the new rule be more strict on government benefits?

The new proposed rule is less relaxed when it comes to the receipt of benefits.

First, it counts “easily monetized” non-cash benefits as cash benefits, which means it will include SNAP/food stamps, rental assistance, and Section 8 vouchers among others.

Second, it limits the total amount of cash benefits a household can receive within 12 consecutive months to 15% of the Federal Poverty Guidelines.  For example, in 2018 15 percent in a household of one is $1,821, so if an alien were to receive more than $1,821 in a year, then that alien would fall under “public charge” and be ineligible for adjustment of status or admission.

Third, regarding non-cash benefits that are not “easily monetized”, such as Medi-cal or Public Housing, the new rule limits the number of months to 12 in a 36 month period (non-cumulative). This means that if an alien has Medi-cal for more than one year within a three year period, they would be considered inadmissible and ineligible on the grounds of public charge.

Fourth, the proposed rule introduces a new standard, which is the combination of benefits. If an alien is likely to receive a cash or “easily monetizable non-cash benefit” in addition to a non-cash benefit for a period of 9 months or longer, then the alien is automatically considered a public charge.

Finally, the new proposed rule will carefully consider the affidavit of support (I-864) when required in an alien’s application.

What does the new proposed rule NOT do?

The proposed rule does not affect the benefits of dependents or other household members. Any cash benefit for the alien’s dependents would not count towards the alien’s household income.

Certain benefits are also not considered, such as Head Start, national school lunch programs, foster care and adoption, emergency medical assistance, and disaster relief.

What other factors will the new rule consider for public charge?

USCIS states that the following “weigh heavily” in finding an alien is likely to become a public charge:

  1. The alien is not a full-time student and work authorization (work permit) but cannot show current employment.
  2. The alien does not have a good work history.
  3. The alien does not have the experience or training necessary to show “reasonable prospect of future employment”.
  4. The alien currently receives, is certified, or has been approved to receive one of the public benefits above the allowed threshold;
  5. The alien has received one or more of the public benefits above threshold within the last 36 months;
  6. The alien has a medical condition that is likely to require extensive medical treatment or institutionalization that will interfere with the alien’s ability to provide for himself;
  7. The alien has a medical condition that requires extensive medical treatment and it seems unlikely he will be able to afford private health insurance;
  8. The alien has previously been found inadmissible or deportable based on a public charge.

What will prevent me from being considered a “public charge”?

To prove that you are not at risk of becoming a public charge, you can prove that you have sufficient financial assets, resources, and support amounting to at least 250% of the Federal Poverty Guidelines for your household size.

Alternatively, you can prove that you are currently working and have an annual income of at least 250% of the Federal Poverty Guidelines for your household size.

For your reference, for a household of two, say husband and wife, the alien would have to earn at least $41,150 (individual, not combined income). For a household of four, say husband and wife with two kids, the alien would have to earn at least $62,750. For a family of six, say husband and wife and one set of grandparents, the alien would have to earn at least $84,350.

When does the new rule go into effect?

The new rule is still “proposed” (and not “final”), and will be published in the federal registry by the end of the year.  After which, it will be open for “comment” for 60 days.  It is possible that adjustments will be made to the rule, or that it will not pass.