If you are considering applying for a visa or a green card for yourself or a family member, you will have to answer questions about your income and how you will maintain your expenses when you are in the United States. The reason for these questions is that when you apply to enter the United States or become a lawful permanent resident (LPR or green-card holder), you must first prove that you will not become a “public charge.”
“Public charge” is a legal term for when an applicant for a visa or green card is likely to become dependent on the US government benefits for their income and survival. If the US government finds that you are likely to become a public charge, then your application for a visa or green card can be denied. The “public charge” test has been a part of the immigration process for decades but re-emerged in the news and media in 2018 because of proposed changes to the rule that could affect many immigrants in the future.
When you file an application to obtain a green card, an immigration officer is required to look at a number of factors to determine if you are likely to become a public charge. These factors include: a person’s age, health, family status (single, married, children, etc), employment and financial status, and education and skills. Additionally, the officer will look at a special form called an “affidavit of support” which is filed by your sponsor, if a sponsor is required. Then the officer has to look at the “totality of the circumstances” to determine if that person specifically is likely to become dependent on US government programs in the future. Typically, an applicant and their sponsor will provide various types of financial documents including tax returns and proof of employment as a part of the LPR application. However, every person’s financial situation is different and so finding the right combination of documents to satisfy the US government that you will not become a public charge is critical to avoid having your application for a visa or a green card denied.
Importantly, the public charge test does not apply to all immigrants applying to become LPRs because there are some individuals who received lawful status who are eligible for a humanitarian waiver from having to pass this test. However, it is very important to obtain a consultation with an attorney who specializes in immigration law in order to determine if you are eligible for such a waiver or if you will have to demonstrate that you are not a public charge because your decision about benefits today affect your ability to obtain LPR status in the future.
In October 2018, the Department of Homeland Security (DHS) published a new proposed rule to change the criteria defining “public charge” that would expand the number of people who could be considered to become public charges, making it harder for individuals to obtain visas and green cards. The proposed rule does this by changing the income levels that applicants have to show, including additional benefits program that disqualify applicants, and adding additional factors that immigration officers can consider when deciding whether to grant or deny an application.
The government requested comments on this proposed rule change and by December 2018, DHS received over 200,000 responses. Now DHS must review all the comments and publish a response to those comments before they are able to finalize the rule. If the rule is finalized and does go into effect, there will be a 60-day period after the final rule is published to “dis-enroll” from a benefits program if it is necessary for their immigration case. This rule will also not be retroactive, meaning it will not punish people who have obtained government benefits that were not previously included in the public charge list.
Given these proposed changes and the uncertainty surrounding the public charge test for you to have an immigration attorney who can help assess you and your family’s income and any benefits your receive to determine any risks that you may face in filing an immigration petition and particularly a LPR application.
Call our immigration law firm in Orlando today at 407.674.6968 to schedule a consultation with one of our expert attorneys, Suzanne Vazquez and Maud Poudat and discuss your family’s financial situation, any benefits that you or a family member receives or wants to apply for, and your long-term immigration goals. Even amidst the political uncertainty of this rule, our office can help you make proactive choices and about you and your family’s future.