New Public Charge Rule Will Significantly Change Financial Support Requirements for Immigrants

The Department of Homeland Security (DHS) has issued a sweeping new Final Rule that fundamentally changes how U.S. Citizenship and Immigration Services (USCIS) will evaluate the public charge ground of inadmissibility for adjustment of status applicants.

The rule, published on July 20, 2026, rescinds the 2022 Public Charge Rule and becomes effective on September 18, 2026. The new rule removes nearly all of the detailed regulatory framework that has guided USCIS adjudications over the past several years. Instead, immigration officers will have significantly broader discretion when determining whether an applicant is "likely at any time to become a public charge."

What Is Changing?

Under the 2022 rule, USCIS followed detailed regulations that defined what constituted a public charge, identified which public benefits could be considered, and established a structured framework for evaluating applicants.

Beginning September 18, 2026, those regulations will be eliminated. Instead, USCIS officers will rely primarily on the statutory factors listed in the Immigration and Nationality Act (INA) and an individualized "totality of the circumstances" review with substantial officer discretion.

Effective Date Is Critical

The new rule applies only to adjustment of status applications filed on or after September 18, 2026.

Applicants who are eligible to file before that date may benefit from submitting their applications early, allowing them to use the current version of Form I-485 before the revised forms become mandatory. USCIS is expected to release updated forms before the effective date.

Greater Officer Discretion

USCIS officers will evaluate each case individually using the statutory factors, including, age, health, family status, assets, resources, education, skills, etc.  USCIS may also consider:

• Other individualized case-specific circumstances; and

• Empirical data related to an applicant's ability to be self-sufficient.

Because many of these standards have not yet been fully defined, much will depend on future USCIS guidance and how officers apply the rule in practice.

A Broader Review of Public Benefits

The 2022 rule generally focused on limited categories of benefits, such as cash assistance for income maintenance and government-funded long-term institutional care.

Under the new rule, DHS indicates that USCIS may consider a much broader range of means-tested public benefits received on or after September 18, 2026, including federal, state, local, and tribal programs as part of the overall public charge analysis. Examples discussed by DHS include:

• Medicaid

• SNAP (food assistance)

• Housing assistance

• WIC

• CHIP

• School meal programs

• Head Start

• Certain tax credits, such as Earned Income Tax Credit (EITC), Child Tax Credit (CTC) and American Opportunity Tax Credit

Importantly, DHS states that receipt of benefits before September 18, 2026, will continue to be evaluated under the previous 2022 standards.

The Form I-864 May No Longer Carry the Same Weight

Historically, a properly completed Form I-864, Affidavit of Support, has been one of the strongest pieces of evidence demonstrating that an intending immigrant would not become a public charge.  The new rule changes that approach. A valid Form I-864 is still required when applicable.  However, simply having a qualifying sponsor may no longer be enough by itself to overcome public charge concerns if other facts suggest the applicant may become dependent on government assistance.

This change makes it difficult for applicants to be certain whether they have met the public charge requirement.

Expect More RFEs and Interview Questions

We anticipate that the new rule will result in:

• More Requests for Evidence (RFEs)

• More Notices of Intent to Deny (NOIDs)

• More detailed public charge questioning during adjustment interviews

• Longer processing times

In fact, AILA attorneys have already reported increased questioning at USCIS field offices even before the rule officially takes effect.

Who Is Exempt?

The following groups of individuals are generally exempt from the public charge requirements: 

• Refugees

• Asylees

• T visa applicants

• U visa applicants

• VAWA self-petitioners

• Several other humanitarian immigration categories

Likewise, public charge generally does not apply to U.S. citizens and usually does not apply to lawful permanent residents unless they are seeking admission after certain circumstances.

What Applicants Should Do Now

If you are planning to apply for adjustment of status, consider the following:

• File before September 18, 2026, if eligible. Earlier filing may allow your application to be reviewed under the current forms and avoid uncertainty surrounding the new rule.

• Prepare complete financial documentation. USCIS may examine your overall financial circumstances more closely than before.

• Understand any public benefits received. Benefit use after the effective date may receive greater scrutiny.

• Work closely with experienced immigration counsel. Because much of the new rule depends on officer discretion and future USCIS guidance, individualized legal advice will be increasingly important.

Final Thoughts

The 2026 Public Charge Final Rule marks one of the most significant changes to adjustment of status adjudications in recent years. Although the Affidavit of Support remains an important part of many family-based cases, it may no longer be sufficient by itself to resolve public charge concerns.

With broader officer discretion, evolving USCIS guidance, and revised application forms expected before September 18, applicants should begin preparing early and ensure their filings present the strongest possible evidence of financial stability and self-sufficiency.

As USCIS releases additional policy guidance and updated forms, applicants and sponsors should stay informed to ensure compliance with the new requirements.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Urgent Update: U.S. State Department Suspends Immigrant Visa Processing for 75 Countries

January 14, 2026

In a significant and sweeping shift in U.S. immigration policy, the Department of State announced today that it will indefinitely suspend the processing of immigrant visas for citizens of 75 countries.

The suspension, which is set to take effect on January 21, 2026, represents one of the most substantial restrictions on legal immigration in recent history. At Law Office of Paul Szeto, we understand how distressing this news is for families waiting to be reunited and for professionals planning their futures in the United States.

Below is a breakdown of what we know so far and what this means for you.

Why Is This Happening?

According to the official statement from the State Department, led by Secretary of State Marco Rubio, the pause is intended to allow for a comprehensive reassessment of screening and vetting procedures.

The administration has cited concerns regarding the "Public Charge" rule, suggesting that the suspension is necessary to prevent the entry of foreign nationals who may require public assistance or "welfare benefits" upon arrival. This move follows a directive issued in November 2025 that tightened scrutiny over an applicant’s age, health, financial status, and English proficiency.

Who Is Affected?

While the State Department has not yet released the final, formal list of all 75 nations to the public, internal memos and news reports have identified a wide range of affected countries across Africa, Asia, the Middle East, and South America.

Countries reportedly on the list include, but are not limited to:

• Middle East/Asia: Afghanistan, Iran, Iraq, Pakistan, Thailand, Yemen, Syria, and Lebanon.

• Europe: Russia, Belarus, Albania, and Bosnia.

• Africa: Somalia, Nigeria, Egypt, Ethiopia, Ghana, and Senegal.

• Americas: Brazil, Colombia, Guatemala, Haiti, and Jamaica.

A complete listing of the 75 countries as reported by the media are listed at the end. 

Important Note: This suspension currently applies only to Immigrant Visas (those seeking permanent residency/Green Cards). Non-immigrant visas—such as temporary tourist (B1/B2), student (F-1), or business visas—are reportedly not included in this specific suspension at this time. 

Generally, those who already have a valid, issued visa in their physical possession are not expected to be affected by the processing pause, though they may face heightened scrutiny at Ports of Entry.

What Should You Do Now?

If you or a family member are currently in the process of applying for an immigrant visa from one of the affected countries, here are our recommendations:

1. Do Not Panic, But Act Quickly: If you have an interview scheduled before January 21, ensure you attend and have all documentation (especially financial sponsorship forms like the I-864) perfectly organized.

2. Review Financial Sponsorship: Given the focus on "public charge" concerns, ensure your petitioners meet and exceed the income requirements.

3. Consult with Legal Counsel: The landscape is changing daily. A "pause" in processing does not necessarily mean your case is canceled, but it may require a strategic shift in how we approach your filing or look for potential exceptions (such as those for religious minorities or specific humanitarian cases).

How We Can Help

Our office is monitorng the situation in Washington D.C. and at consulates worldwide in real-time. We are prepared to help our clients navigate these new hurdles, from filing for "National Interest" exceptions to ensuring that every application is "public charge" proof.

The 75 countries affeced, as reported by the media, are: 

Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Congo, Cuba, Dominica, Egypt, Eritrea, Ethiopia, Fiji, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Ivory Coast, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Liberia, Libya, Macedonia, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan and Yemen.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Public Charge Rule 2.0

USCIS under the Biden Administration has pushed out a new version of the Public Charge Rule, effective 12/23/2022. All green card applications postmarked or submitted on or after this date are subject to the new rule. A public charge is someone that relies on government assistance programs. 

More Relaxed Public Charge Rule

Overall, compared to the old rule implemented by the Trump Administration on 02/24/2020, the new Public Charge Rule is much more lenient.   The old rule scrutinized the applicant's finances, health, education, skills, age, etc., extensively. The applicant's use of public benefits was a major factor for USCIS to consider when adjudicating his/her green card application.  Applicants had to submit extensive financial documents with their I-485 applications, including tax returns, health insurance documents, proof of assets such as bank statements and property deeds, etc. 

New Rule Not Applied to Temporary Visitors

The new version of the rule is a lot less severe in terms of requirements.  For one thing, it does not apply to non-immigrants such as F-1 students, B-2 visitors, and H-1B workers. Another major difference is that applicants are not required to proactively submit their financial documents with their green card applications.  Upon receipt of the applications, USCIS will decide if any additional documents are required regarding public charge. 

Totality of Circumstances Test

Overall, USCIS will adopt a "totality of the circumstances" test to consider if an applicant will likely become a public charge.  Similar to the old rule, the new rule will continue to consider the factors enumerated by the statute under INA §212(a)(4).   Accordingly, USCIS will consider the applicant's age; health; family status; assets, resources, and financial status; and education and skills.  Regarding health, USCIS will base its consideration on the medical exam report prepared by a qualified civil surgeon.  The medical exam is used to screen for the potential health-related inadmissibility grounds, such as a contagious decease.  Under the new rule, a disability alone, without other adverse factors, will not be used to disqualify an applicant from receiving lawful permanent status. 

Cash Benefits and Long-term Care

The new rule focuses on how likely an applicant will become primarily dependent on the government for subsistence.  Two major factors to consider include receipt of public cash assistance for income maintenance and long-term institutionalization at government expense.  

Receipt of public cash assistance will be considered as adverse factors. These include Supplemental Security Income (SSI),  Temporary Assistance for Needy Families (TANF), and non-Federal “cash benefit programs for income maintenance (often called “General Assistance”) offered by the States. USCIS has also clarified that benefits given to family or household members would not be considered even if the applicant applied for those benefits on that person’s behalf.  Benefits normally offered to refugees, even if received by non-refugee applicants, will not be considered for the purposes of public charge determination. 

Medicaid long-term institutionalized care will be considered as a public charge factor.  However, short periods of institutionalization for rehabilitation purposes or imprisonment for conviction of a crime will not be considered.  Finally, Home and Community-Based Services (HCBS) under Medicaid is also not a factor to consider.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

The Public Charge Rule is Dead

Since the advent of the new presidency, immigration policy has drastically changed. Most recently, the public charge final rule that was enforced on and off amidst lawsuits and court injunctions has finally died out. The Secretary of Homeland Security himself announced on March 9th, 2021 that the federal government will no longer seek to implement the public charge rule, decisively putting the final nail in the coffin.

So what does this mean for applicants? Any evidence and information submitted only to meet the public charge rule requirements will not be counted in adjudications from March 9th, 2021 onward. For I-485 applicants, it means Form I-944 Declaration of Self-Sufficiency and its required evidence. For nonimmigrant visa applicants, this means public benefit questions in Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).  

For applications submitted on or after March 9th, these public charge forms and evidence are no longer required. Applications filed without their respective public charge final rule sections completed will not be rejected starting March 9th, 2021.

Sections of Requests for Evidence (RFE) or Notices of Intent to Deny (NOID) that address public charge final rule aspects and that are due on or after March 9th, 2021 do not need to be answered. However, other parts of the RFE/NOID unrelated to the public charge rule still must be responded to.

Overall, the public charge final rule is done and all the application requirements that came with it are no longer to be met. Immigrant visa applicants will no longer be heavily judged on their use of public benefits, health insurance, assets, and other self-sufficiency factors. It will be much easier to petition for family members to enter and stay in the U.S.  

DHS will revert back to a 1999 policy guidance issued by the former INS on the issue of public charge as a ground of admissibility.  The previous policy adopts a "totality of the circumstance test" and emphasizes financial help from family and friends.  Applicants who have received cash public assistance income maintenance (e.g, SSI) and/or received long-term institutionalized care (i.e., nursing home) must provide additional evidence to prove that they will not become public charge.  Receipt of other non-cash benefits such as public school education, school lunch, food stamps, emergency care, etc., would not cause denial of applications. 

We can expect the forms and their instructions to be updated in the near future to reflect this policy change. USCIS will also issue more guidance on this topic soon.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Dept. of State Complies with Public Charge Rule Injunction

The Department of State (DOS) announced that it is changing its policies following the nationwide injunctions on the public charge rule. DOS processes immigrant visa petitions filed in overseas countries.  To comply with the court injunction orders, DOS no longer requires applicants to complete DS-5540 Public Charge Questionnaire. The Department will also update its internal policy in this regard.

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Meanwhile, if an application appears to be ineligible on public charge grounds, visa officers will stop administrative processing of the visa petition, and consult and review with DOS to make sure that any decision does not violate the court order.  

While this is good news, green card applicants must understand that the public charge rule and the public charge ground of inadmissibility are not the same thing. They are still subject to the ground of inadmissibility, which has been in the immigration statutes for many years. 

(If you have any questions about this article or need legal help, please contact our law office at www.1visa1.com) 

Don't forget to Submit the I-944 and/or I-864 with your I-485

The public charge rule has now gone into effect, bringing some changes to the immigrant petition process.  For many applicants present in the US, Form I-485 (Application to Register Permanent Residence) must now be filed with Form I-944 Declaration of Self-Sufficiency and Form I-864 Affidavit of Support.

The I-485 application is filed to request for adjustment of status to permanent resident in the US.  Any I-485 application must have an approved underlying immigrant visa petition, the most common ones being filed by family members (I-130) and employers (I-140). Generally, Form I-485 based on a petition for a family member must be filed with both I-944 and I-864 to prove financial support, including those who are K-1/K-2 fiance visas. Most employment-based petitions will only need to include Form I-944 with the I-485 application. There are exemptions from having to file one or both of the forms, depending on circumstances.

Applicants do not need to file Form I-864 if they have 40 quarters of work in the United States, not including quarters where certain public benefit was received. 40 quarters of work is equivalent to roughly 10 years of paying into social security. An example would be someone who has worked 40 quarters under H-1B status before applying for a green card. He/she would not need to file Form I-864. Children of U.S. citizens who are unmarried and under 18 years-old are also exempt from filing I-864, provided they will become citizens upon admission.

Employment-based applicants typically need to file Form I-944 but not Form I-864. Those whose underlying I-140 was filed by a relative or who have 5% or more ownership in the petitioning business must file both forms.  The I-864 sponsor in this case must be applicant's spouse, parent, child, brother or sister. I-864 is not required if the relative is a brother or sister who is a legal resident of the US (rather than a citizen).

Some other notable categories of applicants that must file I-944 but not I-864 are widows/widowers of US citizens, those under the Diversity Visa program, foreign entrepreneurs (Form I-526), and certain special immigrants.

Some applicants are exempt from filing both I-864 and I-944 including asylees, refugees,  human trafficking victims (T visa), applicants under the Cuban Adjustment Act, etc.  U nonimmigrants and VAWA self-petitioners are as well, except, as discussed earlier, if they are employment-based applicants with family or ownership (at least 5% shares) relation with the petitioning entity.

The above describes the most common situations. Several other specific categories do not need to file one or both of the forms. Anyone planning to file Form I-485 should read the form instructions closely to determine what applies to him/her. Obtain professional legal help if necessary to ensure proper submission of application forms and information. 

Benefits Resulting From COVID-19 Exempt From Public Charge Rule

The ongoing COVID-19 coronavirus pandemic has complicated travel and immigration status for many foreign nationals. In addition, many have been forced to seek treatment and other benefits as a result of this crisis.

The recently implemented public charge rule, however, counts the use of public benefits against someone applying to extend or adjust their status. By this definition, treatment funded by Medicaid and certain benefits needed due to inability to work are included. Worryingly, this could mean that seeking treatment and other benefits now would be a detriment to those applying to change or adjust status in the future.

Thankfully, this will not be the case for benefits received as a result of COVID-19. USCIS has announced that receipt of public benefits for necessary medical treatment, testing, and prevention against COVID-19 will not count against applicants in the future.

Those needing benefits after containment efforts such as shutdowns of their school or office will also not be judged negatively. This also applies to those in areas with quarantine measures imposed due to the virus. The applicant can submit a statement with a future application explaining how they were affected by such measures during the pandemic. He/she should also provide evidence to support their statement.

Overall, taking public benefits now for treatment or as a result of controlling contagion will not affect green card or status extension applications. As shown by USCIS' rule, the need to suppress this crisis supersedes the public charge analysis. Any foreign national hesitating to receive aid due to the public charge rule can go ahead and prioritize their health during this difficult time.

Immigrants Must Disclose Their Financial Information in Form I-944

For many foreign nationals, the U.S. immigration process is synonymous with endless application forms and documentation. Recent implementation of the Public Charge Grounds final rule means that intending immigrants have to deal with yet another form, the I-944 Declaration of Self-Sufficiency.  

DHS first published the Public Charge rule on 10/10/2018.  Despite strong opposition from the immigrant groups and fierce litigation, the U.S. Supreme Court cleared all roadblocks and allowed the rule to take effect on 02/24/2020.  

The new rule applies to applicants of both immigrant and non-immigrant visa / status inside and outside of the United States.  For visa applicants in overseas American Consulates, DOS has implemented an Interim Final Rule and created a new Form DS-5540, Public Charge Questionnaire, for them to complete.

Applicants for adjustment of status (I-485) in the United States must now complete the Form I-944 to prove that they are financially sufficient and are not likely to depend on public benefits. 

The 18-page long I-944 form questions everything about the applicant's financial status including their assets, debts, income level, education, special skills, language ability, etc.

Income includes income from both legal and illegal activities.  Debts include mortgages, auto loans, credit card loans, personal loans, etc.  The form also asks for the income and asset information of the household members of the applicant.

In addition, applicants must also provide their recent credit reports and credit scores.  Unfavorable credit history or low credit scores must be explained.  Previous bankruptcy filings must also be disclosed.

Applicants must also provide information about their medical health insurance, the annual deductibles and premiums.  Those who don't have proof of health insurance must explain how they plan to pay for their medical expenses.

The I-944 form also specifically asks if the applicant has received any public benefits. Those who have received cash benefits such as SSI, Section 8 housing assistance, Food Stamps, TANF, etc., must report the details of the benefits received.  Applicants who have previously applied for or certified for these benefits, even if their applications were denied, must provide the relevant information.

In addition to completing the form, applicant must also provide supporting documents such as tax return transcripts, credit reports, proof of assets and liabilities, public benefit documents, health insurance policy, etc.

It is too early to fully understand how the government may use the I-944 information to determine an applicant's ability to be support himself. Applicants should review their financial situation carefully before submitting their immigration petitions.  Issues such as receipt of public assistance, serious health issues not covered by health insurance, high debt level, poor credit score, etc. are red flags and should be addressed as early as possible.

USCIS to Implement the Public Charge Rule on Applications

Ever since it was first announced late last year, the Inadmissibility on Public Charge Grounds rule has been the subject of much controversy. Once announced to take effect on October 15, 2019, the rule faced a lot of resistance and could not be implemented due to nationwide federal court injunctions. After the U.S. Supreme Court removed these injunctions, USCIS has scheduled to implement the Public Charge Rule nationwide (except Illinois) on February 24, 2020, with slight changes.

A public charge is someone that relies on government assistance programs. With the addition of the public charge rule, all aspects of a foreign applicant's background are scrutinized. Some factors are finances, health, education, skills, and age. The foreigner's use of public benefits is also a big factor. As a response to the nationwide injunctions, however, the rule was changed to only take into account public benefits used on or after February 24, 2020. 

Generally, each factor weighs positively in the applicant's favor if it means he/she is more self-sufficient. If the factors paint a picture of someone who will likely need long-term government assistance, the applicant will be denied entry to the United States. 

The coming implementation of this rule will make it harder for foreign nationals to enter the country on many fronts. Green card applicants as well as temporary visa applicants (H-1B, H-4, L, etc.) will find that they have more documentation to prepare and that standards have risen immensely. Illinois applicants, however, are spared from this rule indefinitely. A federal court injunction preventing the enforcement of this rule is still in effect for Illinois. 

Soon after this final rule announcement, USCIS rolled out new and updated forms reflecting the rule, to be used starting February 24, 2020. The new forms are:

• Form I-944, Declaration of Self Sufficiency
• Form I-945, Public Charge Bond
• Form I-356, Request for Cancellation of Public Charge Bond

The updated forms are as follows:

• Form I-129, Petition for Nonimmigrant Worker
• Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker
• Form I-485, Application to Register Permanent Residence or Adjust Status
• Form I-485 Supplement A, Adjustment of Status Under Section 245(i)
• Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)
• Form I-864, Affidavit of Support Under Section 213A of the INA
• Form I-864A, Contract Between Sponsor and Household Member
• Form I-864EZ, Affidavit of Support Under Section 213A of the Act
• Form I-912, Request for Fee Waiver
• Form I-601, Application for Waiver of Grounds of Inadmissibility
• Form I-539, Application To Extend/Change Nonimmigrant Status, and I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status
• Form I-539 online

Copies of the new forms are available on each form's page on the USCIS website. 

USCIS will accept old editions of the forms whose courier receipts have dates before February 24, 2020. For receipts from Feb. 24, 2020 onward, USCIS will reject old editions of the form. Again, Illinois is an exception and will continue to use current forms.

February 24, 2020 is an important date for those applying to enter the country. It marks the use of new forms, enforcement of the public charge rule, and the date from which public benefits will be counted. It is advised that applicants look closely at the rules dictating how they will be judged. Furthermore, Illinois applicants should stay updated on news of the injunction and USCIS announcements on the public charge rule.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

The U.S. Supreme Court allows "Public Charge" Rule to Continue

A divided U.S. Supreme Court lifted an injunction against the implementation of Trump Administration's "Public Charge" rule in a 5-4 decision. In effect, the government is temporarily allowed to apply the public charge rule in adjudicating immigrant visa petitions filed by foreign nationals, pending final decisions by the Second Circuit Court of Appeals and, possibly, the U.S. Supreme Court on the merits of the rule. 

For a summary of the public charge rule, click here.  The rule affects individuals who have received public benefits and those who are less educated, in poor health, and otherwise  have limited financial resources. 

Update on the Nationwide Injunction against Trump's Public Charge Rule

Trump's strict new public charge rule is being tested in the federal appellate courts following the injunctions that halted its implementation. The new policy, which was set to take effect on October 15, 2019, set high standards for green card applicants by evaluating their past use of public benefits. Each applicant was also to be evaluated on  their education levels, finances, health coverage, and even age, among various other factors. The aim is to prevent possible public charges, or those that will likely end up relying on the government for long-term support, from becoming permanent residents.

A last-minute injunction by a federal court in New York put a nationwide pause to the public charge rule just before it was set to take effect. Injunctions were also put in place by federal courts in the Fourth and Ninth Circuit Court areas. Immigration has been operating by old rules and forms during this time.

Recently, the lower court injunctions were lifted by the Ninth and Fourth Circuit Court of Appeals. However, the nationwide injunction by New York has still not been lifted, meaning these decisions did not have any practical effect.

All eyes are now on the Second Circuit Court, which has the ability to overrule the New York injunction. Such a decision would trigger the implementation of Trump's public charge policy nationwide.

Presidential Proclamation Adds Health Insurance Requirement

President Trump has written a proclamation limiting the entry of immigrants to the U.S. based on whether they have health insurance.

Intending immigrants must have approved health insurance before or within 30 days of entry to the U.S. on an immigrant visa, according to the proclamation. Approved health insurance is coverage through employment, an unsubsidized plan from the market, a short-term health policy or visitor health insurance plan of at least 364 days, a catastrophic plan, a family member's plan, Medicare plans, and others.

If a person can't provide proof of health insurance, he or she must demonstrate possession of sufficient financial resources to pay for any foreseeable medical expenses.

These rules are only intended for individuals seeking an immigrant visa to enter the country. There are also some exceptions to the above. Immigrants that obtain their visa before the proclamation effective date are exempt, as are children of U.S. citizens. Those under 18 years of age are also exempt unless their accompanying parent is not. Foreigners deemed to be of national interest or who would further law enforcement objectives are allowed based on recommendations of the Secretary of State of his designee.

Enforcement of this proclamation will mean stricter requirements for immigrant visa applications and for consular processing.

The new requirements requirement of the health insurance for intending immigrants is part of the broader new "public charge" rule created by the Trump Administration to prevent immigrants from depending on government resources for subsistence.  The public charge rule's implementation, including the health insurance requirement, has been temporarily halted by a federal court on 10/11/2019. 

Federal Court Stops Enforcement of the "Public Charge" Rule

A federal court in New York issued an order enjoining the enforcement of the "public charge rule" that was scheduled to take effect on October 15, 2019.  It is a last minute relief to many individuals and legal professionals who are struggling to understand a complicated new rule and to complete a bunch of new and updated immigration forms including the I-485 and I-129 forms that were just released yesterday.  

The public charge rule is aimed at those who are deemed likely to become a burden on the government's resources. It was set to take effect on October 15, 2019, both within the U.S. and also overseas and at consulates. The Department of State (DOS) issued a final rule explaining the how public charge inadmissibility is determined and how it differs for each visa. 

People seeking to enter the U.S. as visitors or immigrants will have their assets, health, and educational background scrutinized by consular officers to determine admissibility to the U.S. Each component weighs either positively or negatively toward the alien's admissibility. There are many specific details that go into each aspect of the public charge rule. Any diagnosis that requires extensive medical care, institutionalization, or would interfere with the alien's ability to support themselves is a negative factor under health. Lack of health insurance is also a negative factor unless the alien has substantial resources to pay for medical costs. Officers also look at finances, specifically comparing household assets to household size and determining if they will need public benefits in the future. Other factors such as age, education level, skills, and employment history are taken into account. The consular officer himself passes judgement on whether he/she is convinced that the applicant will be a public charge.

U.S. Citizenship and Immigration Services (USCIS) was also set to enforce the new rule, releasing updated Form I-485 Application to Register Permanent Residence or Adjust Status and introducing a new Form I-944 Declaration of Self-Sufficiency. The forms were released on October 10th and USCIS will only accept these updated versions from October 15th onward. It has been difficult for the public to adjust to these changes in such a short interval, especially since the new form I-944 is complicated. The form requires information such as credit reports, assets, and liabilities, all of which can be difficult to gather in a short time frame. Timing is also critical for many of the applications, such as form I-485, where applicants must file within the month based on their priority date.

The American Immigration Lawyers Association (AILA) and a few other organizations filed a lawsuit against USCIS regarding this new rule. The court ordered that enforcement of the rule be temporarily halted until further notice. This is a moment's reprieve for the public, and old forms and rules can be used for the time-being. However, the enjoining is temporary and applicants should take the time to prepare for if and when the rule becomes effective.  

Stricter Public Benefits Requirements for U.S. Green Card and Visa Applicants

Individuals who have received public benefits before may become ineligible to apply for U.S. green card and other visa status.

The final rule for stricter public charge inadmissibility laws has been announced by the Department of Homeland Security (DHS) and will become effective in two months.  Intending immigrants as well as non-immigrant visa holders are both subject to the new requirements.

The "public charge" inadmissibility grounds prevents a foreigner from attaining a visa or admission to the country if he/she will likely rely heavily on government assistance programs. These currently include:

• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF) and General Assistance
• The Supplemental Nutrition Assistance Program (SNAP) ("food stamps")
• Most forms of Medicaid
• Section 8 Housing Assistance under the Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance, and public housing
• Temporary Assistance for Needy Families (TANF) cash assistance
• State and local General Assistance programs

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The definition of public charge has been expanded to cover more kinds of public benefits. Specifically, cash benefits for income, most forms of Medicaid, some housing programs, long-term institutionalized care (at government's expense), and Nutritional Assistance Program (SNAP).

Furthermore, a public charge is now defined as someone who has received at least one public benefit in 12 months over 36 months. Multiple public benefits in one month will add to the 12 months. For example, two benefits in one month will count together as two months worth of benefits.

Nonimmigrants looking to extend or change their status will also be subject to public charge determination. USCIS will no longer consider whether a visa applicant is likely to receive public benefits in the future. They will look at any 36 months since the alien obtained their current status and count if 12 months worth of public benefits were received, as explained above.

Certain groups are exempt from the public charge rule. Those in the U.S. armed forces under active duty or Ready Reserve are exempt, including their spouse and children. Some international adoptees and children with U.S. citizen parents are not counted as public charges. Medicaid for aliens under 21 and pregnant women does not count toward public benefits under public charge. Medicaid benefits for school-based and emergency medical services also do not count. Humanitarian-based immigration programs for refugees, asylees, and certain kinds of victims are also not included.

Another notable change is the addition of public charge bonds for adjustment of status applicants. USCIS can now offer a foreigner inadmissible on public charge grounds the chance to post a bond in the minimum amount of $8,100. The rule also gives USCIS discretion to offer and cancel public charge bonds.

The final rule goes into effect on October 15th. It will be applied only to applications received on or after this day. 

2019 Poverty Guidelines for Affidavit of Support (I-864)

Every year, USCIS publishes the most current income requirements for completing the I-864 Affidavit of Support for immigrant petitions. These guidelines are based on the current poverty guidelines published by U.S. Department of Health and Human Services (HHS).  

To support an intending immigrant and his/her family members, the sponsor(s) must generally show that their income level is above 125% of the U.S. poverty line for the family unit.  For example, as shown by the 2019 guidelines below, for an immigrant family of 2, the sponsor's income must be at least $21,138 in most states and U.S. territories except Alaska and Hawaii, which have higher income requirements.

Size of Household	48 Contiguous States,D.C., U.S. Virgin Islands,Guam & CNMI	Alaska	Hawaii
125% of Poverty Line (U.S. dollars)
2	21,138	26,413	24,325
3	26,663	33,325	30,675
4	32,188	40,238	37,025
5	37,713	47,150	43,375
6	43,238	54,063	49,725
7	48,763	60,975	56,075
8	54,288	67,888	62,425
	Add $4,420 for each additional person	Add $5,530 for each additional person	Add $5,080 for each additional person

If the financial sponsors' income level is below the guidelines, the intending immigrant may be found to be inadmissible to the United States as a "public charge."  Section 212(a)(4) of Immigration Act requires that family-based immigrants and the dependents of an employment-based immigrant must prove that they will not likely become a financial burden (public charge) to the U.S. society.

Normally, the petitioner must act as the sponsor in the I-864 form.  If the petitioner's income level is insufficient, a joint sponsor may provide additional financial support.  Both petitioner and the beneficiary may also use their assets such as real estate, stocks, bonds, cash, etc., to meet the I-864 requirements. 

The requirements regarding financial support have been tightened recently. A rule proposed in October 2018 wants to subject the beneficiary to a comprehensive review, which judges if the person will likely be a public charge. DHS would examine age, health, family status, assets, resources, financial status, education, employment history and skills. In addition, DHS will also look into the beneficiary's history regarding use of public assistance programs (e.g. Supplemental Security Income, Medicaid) in the past three years as well as in the present.  The proposal has not been finalized yet but the more restrictive policy may still be applied in individual cases. Intending immigrants must pay attention to make sure that they are not considered a "public charge." 

The financial sponsor must be either U.S. citizen or legal resident. Another lesser-known requirement for the I-864 sponsor is that he or she must be domicile in the United States. It basically means that the sponsor must regard the United States as his or her permanent home.  

Family Immigration Becomes Difficult Under New Financial Support Rule

If you ever received public benefits, it would be more difficult for you to apply for a U.S. green card under a new DHS proposal. The proposal can possibly become a long-standing law after the public comment period. According to DHS Secretary Nielsen, the proposed regulation is intended to promote immigrant self-sufficiency, ensuring that new immigrants are not likely to become a "public charge" and protect American taxpayers.

"Public charge" as a ground of inadmissibility has been part of U.S. immigration law for over many years but has not been emphasized until recently.   

The Immigration Act provides five factors for consideration regarding the issue of public charge, including (I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills.  These factors have not been heavily considered by DHS as long as there is a valid affidavit of support signed by a U.S. sponsor.  

In addition to those above-listed factors, DHS also proposes to deny green card applications to applicants who have received certain public benefits above certain pre-defined threshold limits or for a long periods of time.  In addition to being barred from getting a visa, applicants that are considered as public charge are generally ineligible for change of status and extension of stay.

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The potential impact of these proposed changes would be substantial. DHS suggests that immigration officers should consider certain "heavily weighed negative factors" that are particularly indicative of a likelihood that the applicant would become a public charge including:

Unemployment

A person who is able to work but does not work raises a red flag that he or she would likely become a burden to the U.S. society. Applicant's current employment, employment history, and reasonable prospect of future employment will be scrutinized, and absence of employability would be considered as evidence of lack of self-sufficiency. 

Current Receipt of One or More Public Benefits

Public benefits that have been listed as triggers for finding of inadmissibility include: federal, state, local, or tribal cash assistance for income maintenance, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Medicaid (with limited exceptions for Medicaid benefits paid for an "emergency medical condition," and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and Public Housing. 

According to DHS, although the receipt of public benefits alone may not justify a finding of inadmissibility on public charge grounds, an applicant's current receipt of one or more of these public benefits does mean that he or she is currently a public charge, and suggests that the alien may continue to receive public benefits in the future and be more likely to continue to remain a public charge, which makes it one of  the heavily weighed negative factors. 

Receipt of Public Benefits in the Past Three Years

In addition, DHS proposes that the applicant's receipt of public benefits within the past 3 years immediately preceding his or her visa application also carries significant weight in determining whether he or she is likely to become a public charge.  In making the determination, DHS is proposing to consider whether the applicant received multiple benefits, how long ago the benefits were received, and also the amounts received. 

Previous Public Charge Finding

Similarly, previous finding of inadmissibility or deportation based on public charge grounds is an indication that the individual will likely become a public charge in the future again. However, applicants may present rebut positive evidence to show that their current circumstances outweigh the negative effects of the previous public charge finding. 

Affidavit of Support (Form I-864) Alone is Not Sufficient

For a long time, the overseas consular officers and the U.S. immigration officers have relied mostly on the Affidavits of Support (I-864 form) executed by financial sponsors as proof that the visa applicant will not burden the U.S. society. But with the changes in the State Department's Foreign Affairs Manuel (FAM) that happened in January 2018, I-864 becomes only a "positive factor" in the totality of the circumstances analysis. With the changes, consular officers are now also assessing the relationship between visa applicants and their joint sponsors. An Affidavit of Support that executed by joint sponsors could be rejected under public charge ground based on an absence of a familial connection between the applicant and the joint sponsor.

The new Declaration of Self-Sufficiency (Form I-944)

With the proposed rule, the focus has shifted from the U.S. petitioner to the intending immigrant. The Affidavit of Support is still required, but it is just a starting point. When Form I-864 alone is insufficient, DHS would then require adjustment applicants to submit a Declaration of Self-Sufficiency (Form I-944) to demonstrate they are not likely to become a burden to the U.S. society. Applicants who are seeking an extension of stay or change of status may also need to file Form I-944 on DHS's discretion. The proposal also suggests that USCIS may become more likely to require surety bonds through a Form I-945. The bond serves as a  guarantee from visa applicants to the United States that they will not abuse public benefits and become a charge on American taxpayers.

Heavily Weighed Positive Factors: 250% Above Poverty Guidelines

The only positive factor that DHS proposes to consider is financial assets and income. DHS uses the Federal Poverty Guidelines (FPG) to determine if an applicant is financially eligible to be issued a green card. For many years, the threshold number used is 125% of the FPG. However, DHS now proposes to raise the threshold number to 250%. With this test, if an applicant is in possession of significant income, assets, and resources of at least 250% of the FPG, his/her application is more likely to be approved. For 2018, 250% of the FPG is $41,150 for a family of two and $62,750 for a family of four.

Conclusion

The proposal is opened for public comments right now. After DHS considers public comments received on the proposed rule, DHS plans to issue a final public charge rule that will include an effective date. In the interim, and until a final rule is in effect, USCIS will continue to apply the current public charge policy.  The new policy, once approved, will almost certainly make it more difficult for foreigners with less financial resources to immigrate to the U.S.