The I-944 Declaration of Self Sufficiency and the Totality of Circumstances Test

As I explained in a previous post, if you are subject to the new Public Charge Rule, you will have to show DHS that you are not inadmissible by proving that you will be economically self-sufficient once you are granted permanent residence in the U.S. This is accomplished by filing an I-944 Declaration of Self Sufficiency form and providing all of the required documents and evidence to DHS at the same time you file your I-485 Application for Adjustment of Status. Although the clear focus of the new Rule is now upon you, as the applicant (and away from your sponsor), it is important to keep in mind that the Rule still allows you to “lean on” and use the income and assets of your sponsor, as well your other Household Members (which is defined and will be explained in detail in a later post), in order to prove that you will be economically self-sufficient.

DHS will evaluate whether you will be economically self-sufficient by weighing all of the positive and negative factors relating to your: (1) age; (2) health; (3) family status; (4) assets, resources and financial status; (5) education and skills; (6) prospective immigration status and period of stay; and (7) the strength of your sponsor’s I-864 affidavit of support. The Public Charge Rule requires that an DHS adjudicator evaluate and weigh these 7 seven factors in order to arrive at a decision at to whether you are likely to become a public charge at any time in the future. The evaluation of these 7 factors, which are set forth in more detail below, is now referred to as the “Totality of Circumstances Test.”

1. Age. Whether you are of employable age and whether your age makes you less likely to be employable. Applicants between the ages of 18 and 61 will be viewed more positively than applicants younger than 18 (unless they are accompanied by a parent) or applicants who are over 61 which are thought to be more likely to require public assistance.
2. Health. Whether you have a medical condition that may impact your ability to care for yourself, to attend school or to work once you are granted permanent residence. In order to evaluate this factor, DHS will look to the results of your G-693 Medical Exam.
3. Family Status. Whether you have a large or small household size. A smaller household size is thought to make it less likely that you will become a public charge in the future. However, there are possible benefits to having a larger household size, namely, that you may be able to lean on and use the income or assets of other household members to qualify under factor 4, below.
4. Assets, Resources and Financial Status. Whether your household income is at or above 125% of the Federal Poverty Guidelines OR, if your household income is not enough, whether you or your household members have sufficient assets to make up the difference. This factor also looks at: whether you have sufficient financial resources to cover medical expenses in the future, whether you have any financial liabilities, and whether you have applied, been certified to receive or have received public benefits on or after October 15, 2019.
5. Education and Skills. Whether you have adequate education and skills to maintain employment with an income sufficient to avoid being more likely than not to become a public charge. In order to fully consider this factor, DHS requires that you provide documentation of your education (diplomas and degrees), training (certifications, licenses), and recent employment history. DHS will also evaluate your English skills and proficiency, as well as your proficiency in other languages in addition to English. Applicants who are fluent in multiple languages will be preferred under this factor.
6. Prospective Immigration Status and Expected Period of Stay. This factor considers the immigration status that you are seeking and your expected period of admission as it relates to your ability to support yourself. In this context, adjustment of status is permanent, so presumably this factor would be looking very far into the future.
7. Affidavit of Support. Whether a valid and sufficient I-864 Affidavit of Support, with supporting documentation, has been filed by your sponsor. This is an extension of prior law which required a sponsor to file an Affidavit of Support showing that the sponsor has sufficient income or assets to support you so that you are not likely to become a public charge in the future.

While these 7 factors clearly target and inquire into very specific areas of your life, your background, and your financial resources, what is not clear is exactly how they will be interpreted by a DHS officer who is adjudicating your application for adjustment of status. In this sense, the new Public Charge Rule has greatly expanded the power and discretionary authority of DHS adjudicators to make decisions based upon their subjective impression and interpretation of the evidence and information which you provide in support of your application.

However, in order to provide some measure of objectivity into the evaluation process, the Rule has also introduced the concept of Heavily Weighted Positive and Negative Factors. These are specific circumstances that adjudicators will have to identify in each case which will be used to shift the balance on the Totality of Circumstances scale, either in favor of a finding that you are likely to become a public charge in the future, or against a finding that you are likely to become a public charge in the future. These Heavily Weighted Positive and Negative Factors will be the subject of my next blog post.

As you can appreciate, the new Public Charge Rule is a real game-changer for immigrant applicants for adjustment of status. In the past, the process of applying for adjustment of status was simple and pretty straight forward for most applicants, especially those applicants who had strong financial sponsors and no potential grounds of inadmissibility that could be applied against them. Now, however, with the new Public Charge Rule in effect, which will require most applicants for Adjustment of Status to file an I-944 Declaration of Self Sufficiency, the process of filing for Adjustment of Status has become very complicated and much more uncertain. This new reality may require most applicants to employ the services of an experienced Immigration Lawyer to prepare and file their adjustment of status application, and to advocate and advance the strength of their application at the Interview, or risk having their case denied and being referred to an Immigration Judge for removal proceedings.

If you have questions about the new Public Charge Rule, contact my office to schedule a consultation to discuss your case. In addition to having practiced U.S. Immigration law for over 25 years, I have spent a considerable amount of time reviewing all of the Public Charge Rule requirements and forms in order to deliver the highest level of professional service and advice to all my clients. Invest in your future today by hiring my firm so that I can put my years of experience to work for you and your family, and together, we can improve your chances of getting your Adjustment of Status application approved.