Form I-944 is a new USCIS form. It came into effect on February 24, 2020, under the presidential proclamation issued by Trump, calling for the USCIS to scrutinize all US immigrant and non-immigrant visa applications (or extensions) to determine if the applicant-the alien-could be subject to denial of immigration benefits because the alien might become an “public charge”.

Who needs to file this form?

Anybody who is applying for adjustment of status and submitting Form I-485 must also submit this Form I-944. In the instructions, the USCIS states “Form I-944 is used to determine whether you are inadmissible to the United States under INA §212(a)(4) because there is a likelihood that you will become a public charge at any time in the future.”

What is a public charge?

Briefly, a public charge is a person who might fall upon public assistance in the United States. This would include benefits paid by the US government to individuals who cannot afford to support themselves.

What are some of these benefits?

These benefits include:

1. Any federal, state, local or tribal cash assistance for income maintenance
2. Supplemental security income
3. Temporary assistance for needy families
4. General assistance which may be federal, state, or local cash benefit programs for income maintenance (as opposed to number one above)
5. Supplemental nutrition assistance program (snap)
6. Section 8 housing assistance under the housing choice voucher program
7. Section 8 project-based rental assistance
8. Public housing under the housing act of 1937
9. Federally funded Medicaid

Is anyone exempt from filing the Form I-944?

Yes, certain classes of alien who apply for adjustment of status may still be exempt from filing Form I-944. These classes typically include individuals who are expected to have little or no assets and have undergone a considerable hardship either in the United States or overseas, prior to coming to the United States. Such classes include:

• Violence Against Women Act self-petitioner
• Special immigrant juvenile
• Afghan or Iraqi nationals who assisted us armed forces in those countries
• Asylum-seekers
• Refugees (individuals who were admitted to the United States due to persecution overseas, who are eligible to adjust their status one year after entry to the United States)
• Victims of crime (U-visas)
• Dependents of U-visa status
• Victims of human trafficking (T-visas)
• Dependents of victims of human trafficking
• Adjustment applicants under the Cuban Adjustment Act
• Adjustment applicants based on dependent status under the Haitian Refugee Immigrant Fairness Act
• Lautenberg parolees
• Parolees under the Indochinese Adjustment Act of 2000
• Registry applicants-continuous residence in the United States since before January 1, 1972
• Applicants under the Amerasian Homecoming Act
• Polish or Hungarian parolees
• Nicaraguans and other Central Americans applying for adjustment under NACARA
• An American Indian born in Canada or the Texas band of Kickapoo Indians
• The spouse child or parent of a deceased soldier under the National Defense Authorization Act

What criteria does the USCIS look at in order to determine if someone is likely to become a public charge, and therefore would be inadmissible?

In its policy manual, the USCIS describes the approach it is taking, and costs light upon the factors that the USCIS will consider in making such a determination. I have therefore gone through the step-by-step analysis and these factors and explain them in simpler terms below as follows.

As I have noted at the very end, please note that this article is merely guidance. For specific information the valuation of your case, and the factors that would apply to you personally, please do seek out professional legal advice from a competent immigration professional.

USCIS step-by-step analysis:

The USCIS officer making the determination, first of all, may not consider any assistance received prior to February 24, 2020.

Step one – the officer must evaluate all the facts, circumstances and evidence in the record to determine whether the factors are either positive or negative. Some of these factors may of course be interrelated.

Step two – every factor is scaled on one of four levels:

• Positive
• Negative
• Heavily weighed positive
• Heavily weighed negative

Step three – the officer must weigh all the factors both individually and cumulatively. That means, each and every factor should be assigned a score, and the officer must weigh those individual scores, as well as the total number individually. Therefore, it is possible to set up a table of sorts, and list the value for each factor in that table, coming up with a total for each of the four levels-positive, negative, heavily weighed positive, heavily weighed negative. Naturally, a showing in the positive or heavily weighed positive column that exceeds the negative or heavily weighed negative column will be conclusive objective proof that the alien is not subject to inadmissibility based on public charge.

Step four – determine whether the applicant is likely or not likely to become a public charge at any time in the future.

Given the analysis above, the officer must make a final determination whether the applicant’s positive factors outweigh the applicant’s negative factors or vice versa.

Having analyzed the step-by-step approach to be followed by the USCIS, let us now look at the factors that the USCIS will consider.

I           Applicant’s age

• Positive – age between 18 and 61
• Negative – 17 and younger; 62 and older
• Heavily weighed positive – none
• Heavily weighed negative – none

II         Applicant’s health

• Positive – no diagnosed medical issues
• Negative – USCIS Form I-693 medical report showing class A or class B medical condition which the civil surgeon indicates is significant enough to interfere with the applicant’s ability to provide and care for him or herself, to attend school, or to work, or that is likely to require extensive medical treatment or institutionalization in the future
• Heavily weighed positive – none
• Heavily weighed negative – none

III        Family status

• Positive – the alien can support him/herself and his or her household members at or above the 125% of the federal poverty guidelines
• Negative – the alien is not able to support him/herself and his or her household members at or above the 125% of the federal poverty guidelines
• Heavily weighed positive – none
• Heavily weighed negative – none

Note: most aliens who are undocumented but are able to adjust their status probably do not have work authorization already, and therefore they may not be working legally in the United States. Hence, it would be problematic to argue that an alien is able to support him or herself on funds or income which is obtained through unlawful, and an authorized employment. This may subject the alien to additional forms of inadmissibility such as working without a legal authorization or false claims to US citizenship or such other significantly problematic issues. Hence, it is highly likely that aliens who are undocumented but are still able to adjust status may be unable to claim a legal income, and hence would be considered to have a “negative” outlook for this particular factor.

IV        Applicant’s assets, resources and financial status

• Positive – current employment. Total household gross income at or above 125% of the federal poverty guidelines. Strong credit report. Financial resources to a limit that would make the applicant ineligible to obtain public benefits. Beneficiary of health insurance policy, or having sufficient income, assets or resources to pay for reasonably foreseeable medical expenses.
• Negative – no employment or low income. Receipt of public benefits in the United States. Filing for bankruptcy within the last two years. Requesting a fee waiver for immigration benefits (that means, asking the US government to accept an application without paying the filing fee due to inability to pay). Poor credit score. No private health insurance or insufficient income, assets or resources to pay for reasonably foreseeable medical expenses.
• Heavily weighed positive – income over 250% of the federal poverty guidelines and private health insurance.
• Heavily weighed negative – receipt, certification of, or approval to receive public benefits for more than 12 months in any 36-month period starting before the application for adjustment of status. Please note-receipt of two or more benefits in a month constitutes two months under this public charge analysis. Note that benefits may not be considered if received prior to February 24, 2020. The applicant has a medical condition and is uninsured, does not have the prospect of obtaining private health insurance, or lacks the financial resources to pay for reasonably foreseeable medical costs based on such medical condition. Please note: this would probably significantly hurt the adjustment of status application who has a chronic and’s or severe medical condition requiring frequent hospitalization for the foreseeable future, if that alien does not have the funds to pay for such hospitalization. Given the incredibly high costs of hospitalization in the USA, it is highly likely that most individuals would be shut out of consideration for immigration on the basis of this one heavily negatively weighed factor. However, the flipside is that aliens can and do obtain assistance from hospitals, doctors, charitable organizations, churches etc. to obtain such medical care, along with donations from medical providers, that would obviate the need to obtain personal health insurance, or be able to pay significantly high hospital bills.

V         Applicant’s education and skills

As you can imagine, anyone who has English knowledge skills, higher education and a skill or a trade would be able to immigrate to the USA. Therefore, the following apply:

• Positive – as above
• Negative – no high school diploma or GED or equivalent. No work experience. No occupational skills. Limited to little English language proficiency.
• Heavily weighed positive – the alien is currently authorized to work and is currently employed in the legal industry with an annual income, excluding any income from illegal activities, of at least 250% of the federal poverty guidelines for the alien’s household size.
• Heavily weighed negative – the alien is not a full-time student and is authorized to work but is unable to demonstrate current employment, recent employment history or a reasonable prospect of future employment.

So, employment or lack of employment is a significant barrier to adjustment of status under these new revised guidelines.

VI        Applicant’s US immigration status and expected period of admission

• Positive – if the applicant provides evidence of in eligibility for public benefits, based on immigration status or expected period of stay – this would be true of most aliens in the United States who are applying for adjustment of status. US benefits law typically requires that the applicant be either a US citizen or a lawful permanent resident or admitted to the United States in some lawful status which allows for provision of public benefits. (Example: refugee status.) Therefore, for most people, this factor would not be a bar.
• Negative – evidence that the alien will be in the United States for a long or indefinite period that may make it more likely than not (51%) to become a public charge and more likely than not to be eligible for public benefits at any time in the future.
• Heavily weighed positive – none
• Heavily weighed negative – none

VII      Sponsor’s ability to support

• Positive – the sponsor’s income must be at or above 125% of the federal poverty guidelines. The applicant and the sponsor are related.
• Negative – the sponsor’s receipt of public benefits in the United States. Sponsor has bankruptcy filing. Sponsor received a fee waiver for any immigration benefits. The sponsor is sponsoring multiple applicants.
• Heavily weighed positive – none
• Heavily weighed negative – none

VIII – Previous public charge inadmissibility

• Positive – none
• Negative – none
• Heavily weighed positive – none
• Heavily weighed negative – previously being found in admissible or deportable on the public charge ground by an immigration judge or by the board of immigration appeals.

As you can see, the eight factors are quite extensive and complex. In completing the application form itself, one has to be very careful and think the answers through before checking the boxes. The fact is, that the USCIS is permitted by law to deny the application to people who may be considered inadmissible as being put economic risks for the United States. Overall, if the applicant is hard-working, diligent, has accumulated some years of paying taxes and can demonstrate a good financial history, the applicant will probably be able to get through this I-944 declaration of public charge process. If, however, the alien’s career and work history are spotty, that might become a problem. Most aliens who come to the United States legally will probably not require public benefits that would trigger inadmissibility.

Finally, as noted above, individuals for adjustment of status need to file Form I-944. However, such individuals also have to file an affidavit of support from a US citizen or permanent resident sponsor, indicating that individual’s willingness to submit to a legal obligation to repay the US government for any funds that the alien may have received in public assistance after receiving his or her permanent residency. Therefore, the affidavit of support requirement is not a standalone. The US citizen sponsor must file the affidavit of support, Form I-864. The alien beneficiary must file the Form I-944. Both of these financial support applications must be filed concurrently with Form I-485.

In conclusion therefore, the Form I-944 is not a form that can be slighted or easily dismissed. It is a critical form, and one that is geared to vetting an immigrant applicant’s ability to live in the USA and prosper, becoming a net benefit to the nation, rather than becoming a burden to the US taxpayer.

For further developments on this issue, stay tuned.

Please note, the Law Office of Farhad Sethna will endeavor to complete each and every application is thoroughly and carefully as possible given the increased scrutiny of the USCIS on financial matters involving aliens and the ability to succeed financially in the United States and not become a burden to the US citizen taxpayer.

 

© Farhad Sethna, Attorney, 2020

Farhad Sethna has practiced law for over 25 years.  He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron.  Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide.  A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000.  Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.