An Update from CLINIC and the Supreme Court

Friday, January 31, 2020


U.S. Citizenship and Immigration Services will implement the final public charge rule to adjustment of status applicants who submit a Form I-485 postmarked on or after Feb. 24, 2020. For applications that are sent by commercial courier (e.g., UPS/FedEx/DHL), the postmark date is the date reflected on the courier receipt. Applicants who reside in Illinois are currently exempted from this final rule due to an injunction in that state prohibiting implementation of the rule. 

The final rule makes radical changes to the current interpretation of this ground of inadmissibility. At the present time, and for the last 20 years, applicants have been able to overcome public charge by submitting an affidavit of support from the petitioner or a joint sponsor that shows evidence of income of at least 125 percent of the federal poverty guidelines. This new rule turns the focus on the applicant and requires the USCIS to balance a list of factors—classifying them as positive or negative, or heavily weighted positive or negative—before reaching a determination. Negative factors could include the applicant’s age (under 18 or over 61), income below 125 percent of the federal poverty guidelines, job skills, work history, high school education, English proficiency, credit rating, health, health insurance coverage, financial liabilities, assets and other resources. 

While another factor—and the one that has drawn the most attention—includes the applicant’s current or past receipt of certain public benefit programs, that is a concern for only a small number of applicants. The effective date will also apply to USCIS’s consideration of applicants receiving any of five newly identified non-cash programs (food stamps, Medicaid, and three federal housing programs); application for, certification or approval to receive, or receipt on or after Feb. 24, 2020, will be a negative factor. 

The agency said it will post updated forms, instructions, and Policy Manual guidance on the USCIS website during the week of Feb. 3, 2020. These new forms must be used on or after Feb. 24, 2020, except in Illinois. 

Additional information and resources about public charge are available on CLINIC’s public charge webpage.