USCIS’s Holiday Surprise: Implementing the New Public Charge Rule and Form I-485
On September 8, 2022, US Department of Homeland Security (DHS) announced a policy change beginning this holiday season: a final rule that will reimplement the public charge ground of inadmissibility (the New Rule). The New Rule is scheduled to become effective on December 23, 2022. Along with the New Rule, US Citizenship and Immigration Services (USCIS) has announced that a new version of Form I-485, Application for Adjustment of Status, will become effective on the same date. As such, all applications for adjustment of status (AOS) to lawful permanent residence that are postmarked on or after December 23, 2022 must include the updated form.
Below we provide background on the public charge rule and a brief synopsis of the new form. The bottom line is that applicants for adjustment of status, and their employers or the law firms helping with those submissions, need to be cautious and prepared for this change in the event they are unable to file AOS applications prior to December 23rd.
The Public Charge Rule
The public charge rule of inadmissibility existed for decades. Section 212(a)(4) of the Immigration and Nationality Act identifies foreign nationals who are currently or are likely to become primarily dependent on the US government for subsistence. Until 2019, the government applied a standard for public charge determinations that was based upon interim field guidance from 1999.
In August 2019, DHS implemented a formal public charge rule (the Prior Rule). The Prior Rule was met with much criticism as it required a cumbersome amount of personal information and a supplemental form be submitted to the government with all AOS applications. Significantly, the Prior Rule diverted from historical precedent related to the government’s understanding of a “public charge” by considering supplemental public health benefits, such as Medicaid and nutritional assistance, as part of the inadmissibility determination. This policy change led to reduced use of such programs among individuals who were not subject to the public charge ground of inadmissibility, such as US citizen children in mixed-immigration-status households. The Prior Rule was eventually vacated in March 2021. Additional background on the Prior Rule can be found on USCIS’s website.
The New Rule was implemented with the intent to reduce the negative effects on individuals in need of public assistance programs created by the Prior Rule. The New Rule applies only to foreign nationals seeking admission to the United States or lawful permanent residence—it does not apply to applicants for nonimmigrant (temporary visa) status, extensions of stay, and changes of status.
DHS applies a totality-of-the-circumstances standard when making an inadmissibility determination. According to the rule, the factors considered when applying this standard include: “family status; assets, resources, and financial status; education and skills; [and] past receipt of the designated public benefits.”
Although it has resulted in a new Form I-485, the New Rule does not require, in most circumstances, that new evidence be submitted with initial AOS applications. However, the new form does require that virtually all AOS applicants provide additional information related to their education, household income, household assets and liabilities, government benefits they have received, and institutionalizations to which they have been subject. For purposes of the public charge rule, institutionalizations must be at the government’s expense and include, for example, long-term stays at nursing homes or mental health institutions.
More information on the public charge rule can be found USCIS’s website.
The New Form I-485
USCIS has not yet released the final version of the new Form I-485, but a draft version has been released. The draft form requires applicants to self-identify as either subject or not subject to the public charge ground of inadmissibility. Section 212(a)(4) exempts certain categories of foreign nationals, including refugees, asylees, and select other groups. These exemptions are listed in the New Rule at Section 212.23. All applicants that do not fall under one of these exemptions will need to identify as subject to the New Rule.
As a result, these applicants will need to provide somewhat lengthy information related to their education and financial circumstances, among other information. The draft form requests an applicant’s household size, annual household income, household assets, household liabilities, highest level of schooling, descriptions of professional certifications and licenses, government benefits received, and long-term government institutionalizations. This will require additional vigilance by AOS applicants and the legal service organizations assisting with preparation of AOS applications.
There is a possibility that USCIS releases a modified final version prior to the December 23 effective date. Regardless, applicants who are seeking to file their applications soon and may not be able to file prior to December 23 should be prepared to complete the new version of the form to ensure their applications are not rejected by USCIS.
The Bright Side
Although the New Rule imposes additional obligations on adjustment applicants, USCIS has not historically denied individuals lawful permanent residence as a result of the public charge rule. During the time the Prior Rule was in effect, there were 47,555 adjustment applications to which the rule was applied. Of these applications, DHS issued only three denials (which were subsequently reopened and approved) and two Notices of Intent to Deny (which were ultimately rescinded and approved). This is a result of the totality-of-the-circumstances standard that is applied to public charge determinations. DHS has affirmed that no single factor is dispositive.
While not many cases were denied on public charge grounds, applicants should be careful that they provide accurate and complete information for the government to avoid potential scrutiny. The consequences for failing to provide accurate representations can be significant under the US immigration laws.
Quarles & Brady Law Clerk Nicholas Lowrey is a contributing author.
For more information on how changes in the Public Charge Rule may impact your operations and for assistance with the new Form I-485, please contact your Quarles & Brady attorney or:
- Timothy D'Arduini: (202) 780-2641 / timothy.darduini@quarles.com
- Lynn O’Brien: (202) 372-9530 / lynn.obrien@quarles.com