Visa Lawyer Blog
In this blog post we discuss the highlights of the newly updated Policy Manual guidance released by USCIS which addresses the Inadmissibility on Public Charge Grounds Final Rule. The Final Rule and guidance is effective as of February 24, 2020 and applies to all applications and petitions postmarked on or after February 24, 2020 (except for in the State of Illinois where the Final Rule remains enjoined by court order).
These highlights are broken down by volume. Volume 2 addresses public charge grounds of inadmissibility for non-immigrants, Volume 8 discusses the public charge ground of inadmissibility in great detail, and Volume 12 discusses how the public charge rule may apply to citizenship and naturalization applications postmarked on or after February 24, 2020.
Highlights:
Non-Immigrants Seeking Extension of Stay or Change of Status (Volume 2 Chapter 4)
This section of the policy guidance clarifies that although the public charge ground of inadmissibility does not apply to nonimmigrants seeking either an extension of stay (EOS) or change of status (COS) on Forms I-129 or Form I-539, these applicants are generally subject to the “public benefits condition,” unless specifically exempted by law.
What is the public benefits condition?
According to the policy manual, “the public benefits condition requires an applicant seeking EOS or COS on or after February 24, 2020 (postmarked or if applicable, submitted electronically on or after that date) to demonstrate that he or she has not received, since obtaining the nonimmigrant status he or she is seeking to extend or from which he or she seeks to change, one or more public benefits, or more than 12 months in the aggregate within any 36-month period (where, for instance, receipt of two public benefits in 1 month counts as 2 months).
USCIS only considers public benefits received on or after February 24, 2020 for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date.”
Who is Exempted?
This public benefits condition does not apply if:
- The nonimmigrant classification the alien seeks to apply for, extend, or change to, is exempt from the public charge inadmissibility ground by law or regulation—click here for a complete list of exempted categories of aliens
- The public charge ground of inadmissibility has been waived for purposes of the nonimmigrant status that the alien seeks to extend or from which the alien seeks to change; or
- The applicant filed the request for EOS or COS before February 24, 2020 (postmarked date).
Three-Step Approach
To determine whether a non-immigrant is subject to the public benefits condition, an officer must take a three-step approach:
Step 1: Determine whether the application or petition was postmarked on or after February 24, 2020. If the answer is no, the public benefits condition will not apply. If yes, proceed to step 2.
Step 2: Determine whether the nonimmigrant classification the alien seeks to extend or change to, is exempt from the public charge ground of inadmissibility or whether the alien received a waiver of the public charge ground of inadmissibility for the nonimmigrant classification.
If an applicant is exempt, the public benefits condition will not apply. If the applicant is not exempt, proceed to step 3.
Step 3: Determine whether the alien seeking EOS or COS received public benefits on or after February 24, 2020 in excess of 12 months, in the aggregate, within any 36-month period after the alien obtained the nonimmigrant status he or she seeks to extend or change from:
- Review the responses to the public benefit receipt questions on Form I-539/I-539A or Form I-129/I-129CW; and
- Review the file and available systems.
If the answer is yes, then the officer will deny the EOS or COS request for lack of eligibility based on the public benefits condition. If the answer is no, the officer will proceed with EOS or COS adjudication.
Public Charge Ground of Inadmissibility (Volume 8 Chapters 2, 4, 14)
This section of the policy manual clarifies the meaning of “public charge,” the totality of the circumstances test, and the factors to be considered by adjudicating officers, including which factors are heavily weighted in terms of making a person “likely at any time to become a public charge.”
Meaning of Public Charge
The guidance clarifies that an alien is inadmissible on the public charge grounds if the officer is of the opinion that the alien is, at the time of admission or at the time of adjustment of status, “likely at any time to become a public charge.”
In using the terms “become” and “likely at any time,” Congress clearly indicated that the public charge inadmissibility determination is a predictive assessment that is based on factors that tend to show whether the public is likely to shoulder the burden of supporting the alien.
Therefore, the DHS regulations that define an alien to be “likely at any time to become a public charge” as “more likely than not at any time in the future to become a public charge, as defined in 8 CFR 212.21(a), based on the totality of the alien’s circumstances.”
An alien is more likely than not at any time in the future to become a public charge if it is probable that, given the totality of the alien’s circumstances, he or she will receive, at any time in the future, one or more public benefits for more than 12 months in the aggregate within any 36-month period.
Factors to be Considered (Chapter 4)
The determination of whether an alien is likely at any time to become a public charge is a discretionary and prospective determination based on the totality of an applicant’s circumstances.
Congress has mandated that the public charge determination must consider, at a minimum, an applicant’s age, health, family status, assets, resources, financial status, education, and skills. Additional factors to consider, include the Affidavit of Support Under Section 213A of the INA (Form I-864), the prospective immigration status and expected period of admission.
Consideration of these mandatory factors requires a case-by-case determination based on the totality of the alien’s circumstances.
Totality of the Circumstances
Evaluating whether an applicant is inadmissible based on the totality of the applicant’s circumstances means evaluating all of the information provided by the applicant on the declaration of self-sufficiency, the adjustment of status application, and other associated forms; evidence provided and in the record; and statements by an applicant during an interview, if applicable. The totality of the circumstances analysis involves weighing all the positive and negative factors related to the factors as outlined below, as they apply to the applicant.
Determining Whether Factors are Positive or Negative
When conducting a totality of the circumstances analysis, an officer must first evaluate all of the applicant’s facts, circumstances, and evidence to determine whether factors in the analysis are positive or negative.
Any factor that decreases the applicant’s future likelihood of receiving one or more public benefits above the 12 months in the aggregate in a 36-month period threshold is positive. Any factor that increases the applicant’s future likelihood of receiving one or more public benefits above the 12 aggregate months in a 36-month period threshold is negative.
The mere presence of any one enumerated factors does not, by itself, necessarily result in a specific finding in the public charge inadmissibility assessment, except that absence of a sufficient Form I-864, where required, leads to an inadmissibility finding.
In addition, officers are not limited in the factors they may consider for purposes of the totality of circumstances analysis. The applicant may present factors not listed in the statute, regulation, or this guidance.
Weight of the Factors
The policy guidance provides that beyond determining whether factors are positive or negative, the officer must also weigh all factors individually and cumulatively.
In particular, the officer must assess the weighted degree to which each factor is negative or positive – the extent to which the factor affects the likelihood that the alien will or will not receive one or more public benefits above the threshold.
The weight given to an individual factor depends on the particular facts and circumstances of each case and the relationship of the individual factor to other factors in the analysis. A specific factor may weigh more heavily in one applicant’s case than another, depending on what other factors exist in each case.
Multiple factors also operate together to carry more weight as a whole, if those factors in tandem show that the alien is likely to, or not likely to become a public charge. However, factors are not both positive or negative and heavily weighted positive or negative.
In addition, certain enumerated factors generally weigh heavily in favor of or against a finding that an alien is likely to become a public charge.
Only those factors specified in regulation may be considered heavily weighted. The existence of any heavily weighted factors does not necessarily require a certain outcome, as these factors can be overcome by other factors that are not heavily weighted. For example, a positive heavily weighted factor is not needed to overcome a heavily weighed negative factor. Further, heavily weighted factors are not required to find an applicant likely or not likely to become a public charge.
Heavily Weighted Factors (Chapter 14)
The following are heavily weighted negative factors that weigh heavily in favor of a finding that an applicant is likely to become a public charge at any time in the future:
- The alien is not a full-time student and is authorized to work, but is unable to demonstrate current employment, recent employment history, or a reasonable prospect of future employment;
- The alien has received or has been certified or approved to receive one or more public benefits, for more than 12 months, in the aggregate, within any 36-month period, beginning no earlier than 36 months before the alien’s application for admission or adjustment of status, starting on or after February 24, 2020;
- The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide for himself or herself, attend school, or work; and the alien is uninsured and has neither the prospect of obtaining private health insurance, nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition; or
- The alien was previously found inadmissible or deportable based on the public charge ground by an immigration judge or the Board of Immigration Appeals.
The existence of any one of the enumerated heavily weighted negative factors are particularly indicative of the likelihood that the alien would become a public charge.
However, the mere presence of any one heavily weighted negative factor does not, alone, make the alien inadmissible based on the public charge ground.
Lack of Employability, Receipt of Public Benefits, Lack of Private Medical Insurance, etc. Viewed as Strong Public Charge Indicators
Lack of employability, past receipt of (or certification or approval to receive) public benefits in the 36 months immediately before the application for admission or adjustment of status, diagnosis of a significant medical condition and lack of private health insurance, and aliens previously found inadmissible or deportable based on public charge grounds in removal proceedings, are strong factors indicating that an individual is likely to become a public charge.
Waivers of Inadmissibility Based on Public Charge Grounds (Chapter 16)
Immigrant Waivers
In general, the public charge ground of inadmissibility cannot be waived for aliens seeking lawful permanent resident (LPR) status. However, the law may provide certain aliens seeking LPR status a waiver of the public charge ground of inadmissibility. The following aliens seeking LPR status may overcome the public charge ground of inadmissibility if they apply for and USCIS grants a waiver of the public charge ground of inadmissibility:
- Applicants seeking adjustment of status on account of their witness or informant status.
- Certain aged, blind, or disabled applicants for adjustment of status under INA 245A.
Nonimmigrant Waivers
The following nonimmigrants seeking admission may overcome the public charge ground of inadmissibility if the alien applies for and is granted a waiver of the public charge ground of inadmissibility:
- Nonimmigrants seeking admission to the United States. An alien applying for a nonimmigrant visa or seeking temporary admission as a nonimmigrant may seek a temporary waiver of inadmissibility. This application for a temporary waiver of inadmissibility is adjudicated by U.S. Customs and Border Protection (CBP) as part of either an alien’s application for admission at a port of entry or an alien’s application for a nonimmigrant visa at a U.S. consulate or embassy. If granted, the waiver generally only applies to the nonimmigrant classification for which it was granted.
- Applicants for admission as nonimmigrant witnesses or informants (S nonimmigrants). The application to seek nonimmigrant status as a witness or informant, including the request for a waiver of a ground of inadmissibility, is made on the Inter-Agency Alien Witness and Informant Record (Form I-854A). The waiver is discretionary, and USCIS may grant the waiver if it considers it to be in the national interest.
Does the Rule Apply to Citizenship and Naturalization Applications on or after February 24, 2020? (Volume 12 Chapter 2)
Finally, the policy guidance clarifies that the public charge ground of inadmissibility does not apply in naturalization proceedings. Therefore, an applicant for naturalization does not need to demonstrate that he or she is not inadmissible as likely at any time to become a public charge as part of a naturalization application.
The policy guidance states that officers should not make a new determination of public charge inadmissibility when adjudicating a naturalization application.
However, when determining the applicant’s eligibility for naturalization, USCIS assesses whether the applicant was lawfully admitted as an LPR, which includes an assessment of whether the naturalization applicant was inadmissible at the time the application that conveyed LPR status was granted, at the time the applicant was granted adjustment of status, or at the time the applicant was admitted as an LPR.
When reviewing a naturalization application in which the applicant’s adjustment of status was postmarked on or after February 24, 2020, or in which the applicant was admitted into the United States with an immigrant visa on or after February 24, 2020, the officer determines whether the alien was lawfully admitted as an LPR, including that he or she was not inadmissible as a public charge.
For more information regarding this policy guidance please click here.