Form I-485 is an application that intending immigrants must file
in order to apply for permanent residency and receive
their green card. The form lists standard questions regarding the applicant's
background information, address history, employment history, marital status and
asks security questions regarding arrests and any trouble with the law.
United States Citizenship Immigration Services (USCIS) is now
taking a closer look at the public charge section (questions 56 to 66) under
the Trump Administration. These questions are tricky, and it is important for
practitioners moving forward to treat this section of the form with extra
precision and care since USCIS is placing greater scrutiny on the public charge
issue.
The public charge issue
On Page 18, Part 9 of Form I-485 of the form, each applicant
must answer questions regarding their financial history to prove whether or not they are or are likely to become a public
charge. The public charge rule is a policy used by USCIS to determine
whether an individual applying for a visa, green card or entry to the United
States is likely to become dependent on government assistance for subsistence
and, therefore, excludable. This concept is rooted in the Immigration and
Nationality Act (INA), which allows immigration officials to use their
discretion to deny admission or adjustment of status to individuals deemed
likely to become a public charge. Historically, the public charge
assessment considers factors such as an applicant's income, employment, health,
education and family support. The evaluation may also include whether the
applicant has used or is likely to use certain public benefits, such as cash
assistance (e.g., Supplemental Security Income or Temporary Assistance for
Needy Families) or long-term institutional care. Non-cash benefits like
Medicaid (except for long-term care), SNAP (food stamps) or housing assistance
may also be considered, depending on the specific policy in effect.
People who are exempt from the form
For potential applicants who are filling out the new form, some
classes of immigrants are exempt from this section. These include applicants
under the Violence Against Women Act (VAWA), the U visa and the Cuban
Adjustment Act.
What the questions ask and best practices for answering them
If an applicant does not fall under any of the exemptions for
public charge, they must fill out the following questions regarding their
economic background, such as: What is their household income? What is the total
value of the household assets? What is the applicant's educational background? Has
the applicant received any benefits from the government in the past, and has
the applicant ever been institutionalized?
In practice, an applicant's federal income tax returns from the
past five years are often the most helpful tool for answering many of the
public charge questions. If clients don't have this information readily
available, it's advisable to have them contact their accountant -- or reach out
to the accountant directly -- to review the returns and help provide accurate
responses. For questions regarding the value of household income, household
assets and household liabilities, the form asks for a range -- which goes from 0
to $27,000 on the low end, or over $141,000 on the high end.
Answering the public charge questions during an interview
I recently attended a U.S. Immigration interview where my
client's U.S. citizen daughter was petitioning for her mother to become a
permanent resident. In the past, questions regarding public charge were
straightforward. However, this time the officer went through each question on
Form I-485 in detail, and thankfully my client was able to use her recent tax
returns as a guide to respond accurately. I strongly recommend that
practitioners go over each question in the public charge section with their
clients in advance of the interview and find out if there have been any changes
that the client may have to inform the officer of, such as a reduction in the
amount of household liabilities through paying off a loan or an increase
through purchasing a home.
What happens if a client's answers are leaning towards a public
charge?
Determining whether or not a potential
applicant will become a public charge is within the officer's discretion. Best
practices when doing client intake are to find out certain things, such as:
Have they received any government benefits in the past
five years?
What do their tax returns state?
Do they have any alternative means of support?
If an applicant's economic background may deem them more likely
for USCIS to find them to become a public charge, then find financial
documentation to rebut this. Federal Income Tax Returns are usually the best
starting point. As long as an applicant's tax returns
are above 125% of the Federal Poverty line, Immigration will not deem them to
become a public charge. If a client's tax returns fall below that threshold and
there are no other means to demonstrate they won't become a public charge, it
may be advisable for the client to delay filing Form I-485 until their
financial situation improves to reduce the risk of application denial.
Litigation history against Form I-485
The American Immigration Lawyers Association has brought suit to challenge the recent additions to Form I-485
on other grounds. However, the public charge section of the form has not
been challenged through litigation and remains in effect.
Moving forward, it is advisable for practitioners to constantly
monitor the USCIS website for any new revisions to Form I-485. They should find
out well in advance of filing the form what the applicant's financial situation
is and consider that when they file their federal tax returns. Further, they
need to prepare them for the public charge questions on the application form
for their interviews.