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EXPLAINED: I-944 Form, Declaration of Self-Sufficiency, and the Green Card Process

Starting February 24, 2020, U.S. Citizenship and Immigration Services

(USCIS) implemented a new form titled "Declaration on Self-Sufficiency" nationwide. USCIS is requiring all applicants to submit this new form for Adjustment of Status, applications and petitions for Extension of Non-immigrant Stay or Change of Non-immigrant Status.

U.S. law has long required that immigrants demonstrate financial self-reliance. Under the current Immigration and Nationality Act (INA), an applicant can be inadmissible if he is determined “likely at any time to become a public charge.” For that reason, the applicant must show the following factors to be taken into account: (1) age (2) health (3) “family status”(4) assets, resources, and financial status and (5) education and skills.

Before this new rule, applicants submitted affidavits of support ( Form I-864) to show that a sponsor had committed to ensuring the applicant’s financial well-being. But Congress believed non-binding affidavits of support failed to prevent immigrants from becoming public charges precisely because they were legally non-enforceable.

The new rules will govern how the agencies must consider the totality of the circumstances and make a prospective, forward-looking determination of whether applicants for an immigrant or non-immigrant visa, applicants for admission to the United States, and applicants for adjustment of status to lawful permanent residency are likely to become a public charge "at any time" in the future.

But what is a Public Charge?

The definition of “public charge” is now expressly tied to the receipt of “public benefits.” An immigrant “likely to become a public charge” means one who is likely to receive designated public benefits at any time in the future. The definition can be found in 8 CFR §212.21(a), which provides:

Public charge means an alien who receives one or more public benefits, as defined in paragraph (b) of this section, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

Since public charge determinations are prospective in nature, the question is whether a person, in the future, is “likely” to receive public benefits. More particularly, the question that the U.S. Department of Homeland Security (DHS) adjudicators will have to decide in making their public charge assessments is whether the applicant, at any point in the future, is more likely than not to receive public benefits for 12 months out of a 36-month period. If an applicant has received public benefits as categorized below, that, by definition, makes the individual a public charge. But even if he has not received such benefits, he may still be inadmissible on public charge grounds. That is because the DHS will now deploy a new totality of circumstances test to determine if the person is “likely at any time in the future to receive one or more public benefit.”

The Public Charge Rule lists the following programs, which qualify “public benefits":

  1. Supplemental Security Income (SSI);

  2. Temporary Assistance for Needy Families (TANF);

  3. Any other federal, state or local cash benefit programs (i.e., general assistance);

  4. Supplemental Nutrition Assistance Program (SNAP, i.e., food stamps);

  5. Section 8 Housing Assistance under the Housing Choice Voucher Program;

  6. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);

  7. Medicaid; and

  8. Public Housing under Section 9 of the U.S. Housing Act of 1937.

The Public Charge Rule carves out three (3) notable exemptions for those who receive public benefits. First, DHS exempts several categories of Medicaid enrollment. These exempt categories are:

  • Emergency Medicaid;

  • Services provided under the Individuals with Disabilities Education Act;

  • School-based services;

  • Benefits received by individuals under age 21; and

  • Benefits received by pregnant women.

As a practical matter, these exemptions may cover most foreign nationals who are enrolled in Medicaid. Apart from special categories, most foreign nationals do not qualify for Medicaid until they have held LPR status for five or more years.

Second, the Public Charge Rule also excludes public benefits received by military families. This applies to applicants who were in the service at the time they received benefits or who were in the service “at the time of filing or adjudication” of their immigration application. The exclusion applies both to applicants who themselves are in the service, as well as applicants who are the spouse or child of a service member.

Third, the rule exempts child applicants who will automatically acquire citizenship under section INA §320.43 That is, minor LPR children with one U.S. citizen parent who resides in the United States with that parent. The exemption also applies to adopted children residing with a U.S. parent.

As discussed above, DHS will now consider if you already are a public charge or if you may become a public charge in the future through seven (7) factors in support of its totality of circumstances test:

  1. Age: Whether the applicant is of employable age and whether age makes her less likely to be employable.

  2. Health: Whether the applicant has medical condition that impacts her ability to care of himself or herself, to attend school, or to work upon admission or adjustment of status (a medical exam I-693 may be required)

  3. Family Status: Whether the applicant has a large household size.

  4. Assets and Resource Financial Status: Whether the applicant’s household income is/at above 125% of FPG. If it is above, whether the applicant has sufficient assets (i.e., bonds, accounts, stocks, real states...) in which cash value exceeds 3X the difference for aliens. Whether the applicant has sufficient resources to cover reasonably medical costs or whether the applicant has financial liabilities.

  5. Education and Skills: Whether the applicant has “adequate education and skills” to maintain employment.

  6. Prospective Immigration Status and Expected: The immigration status the applicant seeks and the expected period of admission as it relates to alien’s ability to support him/herself.

  7. Affidavit Support: Whether a valid and sufficient Form I-864 has been filed.

For now on all the applicants must submit this list of factors through documents and forms in order to obtain a successful Adjustment of Status. The new Public Charge Rule can be confusing and stressful to do it on your own. Our office can help you and your family with instructions and information so your case is not negatively impacted by this new form. Please don’t hesitate to reach out if you have any immigration related questions or concerns, as we are happy to provide free initial consultations.

About Us

The Law Office of Nicholas J. Mireles is an experienced Los Angeles bases U.S. Immigration law firm has been practicing immigration law since 2013. Our background makes us uniquely well suited to help you with any type of issue relating to your immigration status.

Law Office of Nicholas J. Mireles, APC

411 West 7th St. Ste 310 - Los Angeles, CA 90014

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