Things you can do to improve your chances that you will NOT be found likely to be a Public Charge in the future.

Posted on May 27, 2020

Yes, I know that this is a long title for a blog post. But after spending a lot of time going over all of the details of the new Public Charge Rule (the Rule) and working with clients on preparing and submitting the new I-944 Declaration of Self Sufficiency, I have been taking mental notes and making a list of practical things that applicants can do in order to avoid getting their case denied based on a finding that they may become a public charge in the future.

According to the regulations, the Public Charge determination will be based upon a totality of the circumstances. This means that the USCIS officer will be taking a very broad look at the applicant and looking at a wide variety of different factors (age, health, education, financial status, etc.), with a particular focus on the heavily weighted negative and positive factors, of course. This also means that in most cases, there are steps you can take now in order to work building up your positive factors and trying to reduce or eliminate any negative factors that may be present.

With this in mind, here are my TOP RECOMMENDATIONS:

If you are unemployed, get a job or a written conditional offer of employment. This is especially true if you have a valid work permit and are not working. The Public Charge Rule places a lot of importance on income and current employment. If your household already has income or assets that are AT LEAST 125% of the federal poverty guidelines, then this may not be as much of a concern for you. Ideally, USCIS will want to see that your total household income is at least 250% or more of the federal poverty guidelines. If you cannot legally work because you do not have permission to work in the U.S., then get a letter from a future employer that says that the employer will give you a job (with salary or wage information) if you can show that you are authorized to work in the U.S., such as by producing a work permit.

If you have worked in the past, get letters from your past employers confirming that you worked for them. The Public Charge Rule has an implied three-year lookback period, asking you about your employment for the past 3 years (before the date that you will be filing your application). Of course, there is nothing preventing you from getting letters from employers that you worked for more than 3 years ago. As the saying goes, history has a way of repeating itself (or rhyming). This means that if you worked in the past, there is a good chance that you will work again in the future if you are able.

If you are unemployed and can not work because you are a PRIMARY CAREGIVER to someone else, present documentary evidence of this fact to USCIS. Fortunately, USCIS provides a form of excuse for an applicant who is not working because they are the primary caregiver to someone else. In order to qualify, you have to show that you live with the person you are caring for. In addition, only one alien within the household can be considered a primary caregiver. So while there may, of course, be others that are helping out, only one individual can be considered a primary caregiver. You should also present documentary evidence of the identity, immigration status, age, medical condition, and disability of the person for whom you are caring. It would seem to help if the person you are caring for is a U.S. citizen or a U.S. permanent resident.

If you have any specialized training, skills, or certifications, get as much documentation of this as you can and present it with your application. Again, current income and future employment are heavily weighted factors in the Public Charge determination. If you have special training or skills, you should do everything you can to present and showcase your abilities, whether its through letters from past employers, letters of recommendation, proof of businesses you have owned or operated in the past, letters from customers, certificates, licenses, newspaper or magazine articles written about you or your business, photos, or online reviews. Anything you can show that tends to prove that you will be an asset and a positive addition to the U.S. economy can improve your chances of showing that you will be economically self-sufficient.

If you are healthy and fit, be sure to highlight this in your application. As shallow as it seems, the reality is that appearances do make a big difference in the eyes of the adjudicator who will make a decision on your application. This is particularly so with the Public Charge Rule analysis since USCIS will be evaluating your overall health and, more specifically, whether you have a medical condition that will require future treatment or interfere with your ability to get or keep a job in the future. Of course, we are only talking about the way things appear on the surface here (not what a medical exam or blood tests will reveal). But still, since people serious or life-threatening medical conditions tend to present and show it on the outside at some point, it makes logical sense that someone who actually looks healthy probably is healthy. This is especially true if your job happens to be in the area of health, nutrition or personal fitness; or even if you regularly go to the gym or attend yoga or Zumba classes. Bottom line: do what you can to document your healthy lifestyle. And if you are not doing any of these things, then you should consider starting today.

If you have an objective Medical Condition or Diagnosis that may require future medical treatment, do your best to explain how you plan to cope with it and why it will not make you a public charge or interfere with your ability to hold down a job. How you handle this issue will, of course, depend upon your medical condition and your own personal circumstances. First and foremost, understand that USCIS will want to see proof that you have resources or a plan in place to take care of all of your future medical needs. Perhaps you have or qualify for insurance through your relative sponsor or your employer. Or maybe you, a family member, or someone in your household has sufficient financial resources to cover the costs of your treatment and medications in the future. You might also consider getting a letter from a Caregiver, preferably a family member, who has agreed to take care of you in the future. All of these can help. Bottom line is that, if you have to disclose a medical condition (or your medical exam will reveal one) you may be better off to directly address your medical issue and do your best to address it upfront, rather than to be silent about it and hope that USCIS does not notice it when reviewing your application.

Discuss the results of your I-693 Report of Medical Examination with your doctor and ask for an extra copy for your personal records. Most applicants for adjustment of status (I-485) will have to file a completed I-693 Report of Medical Examination with USCIS. The purpose of this Report is to advise USCIS whether are inadmissible to the U.S. on public health grounds. Generally speaking, if you are found to have a “Class A Condition” and it is noted on your I-693 form, that is conclusive evidence that you are inadmissible to the U.S. on public health grounds. However, if a “Class B Condition” is noted, then you are not automatically inadmissible on public health grounds BUT you may be inadmissible on PUBLIC CHARGE grounds. In this case, USCIS must make a determination as to whether the Class B medical condition will interfere with your ability to care for yourself, work, or attend school. Usually, your doctor will give you the I-693 in a sealed envelope (which you may NOT open) to file with USCIS. But of course, since you are paying for your report, you have the right to ask for an extra copy (though not all doctors will automatically provide one to you). Either way, you would be well advised to discuss the results of the Report with your doctor or a medical professional just to make sure that neither a Class A or a Class B condition has been noted on your report. And while we would expect that your doctor would inform you if you were found to have any notable condition, doctors may make mistakes and overlook results. The bottom line is that you need to know the results of your medical exam before you submit it to USCIS since it may alert you to a ground of inadmissibility that you may be able to either fix from a medical standpoint (before filing your I-485) or at least address (if it is a Class B condition) and explain upfront why the condition will not interfere with your ability to care for yourself, work, or attend school.

Get private Health Insurance and proof of your coverage, especially if you have a medical condition that requires future treatment. Lack of health insurance coverage or resources to cover future medical needs is one of the heavily weighted negative factors in the totality of the circumstances analysis. If you have private health insurance coverage, then get plenty of proof and submit it to USCIS, including but not limited to a copy of the coverages page of your policy, documentation showing the effective dates, and a copy of your insurance card. If you do not have health insurance coverage, but it is reasonably available to you, do your best to secure coverage, or at least apply for it so that you can show USCIS that you understand your obligation to be self-sufficient in regards to your own medical needs.

If you have been deported, declared inadmissible, or have had Immigration problems in the past, do your best to address it upfront and explain why it will not prevent you from adjusting status. This is easier said than done. But if you have a negative U.S. immigration history, you will have to address it at some point in your application or at your interview. Get your facts straight, obtain documents, get whatever you need from any lawyers, family members, or sponsors that might have documentation to help explain your situation and organize it so that it can be presented to USCIS in the best light possible. At a minimum, take action to gather the documents and the facts to be able to present to your current or future Immigration Lawyer, such as, for example, if you were going to hire my firm. The more you can provide me with, the better I will be able to help you. Get documents and evidence while you can, as these items tend to get lost or become harder to access over time.’

If you have debt, pay it off. If you don’t have debt, then don’t take on any debt and start saving your money. USCIS will review your income, assets and financial resources as part of the Totality of Circumstances Test. If your household has income, assets, and financial resources that are at least 250% of the current Federal Poverty Guidelines (Form I-864P) for the size of your household, this will be viewed as a heavily weighted POSITIVE factor. But note that USCIS will also look at your debts and financial liabilities when reviewing your assets and financial resources, so debt can have the effect of cancelling out or reducing the actual value of your assets. Because the Public Charge Rule and the I-944 Declaration of Self Sufficiency are all getting to the question of whether you can support yourself (which includes help from your household and sponsor), this heavily weighted positive factor of income and assets may be one of the most important factors of all. In my opinion, having enough money and financial resources may, BY ITSELF, be enough to avoid a finding that you are likely to be a public charge in the future and will get your case approved. Bottom line. If you have debt, try to pay it off. If you don’t have debt, then don’t take on any debt and start saving your money.

Don’t apply for or accept Public Assistance benefits (unless you are exempt). Under the Totality of Circumstances test, it will be a heavily weighted negative factor if you have received, been certified or approved to receive certain public benefits in the US (on or after 2/24/20) for more than 12 months within the 36 months immediately preceding adjudication of the application. If you have received public assistance benefits within the past 3 years, but are not currently receiving benefits, consider waiting to file your application so that by the time you file, it has been more than 3 years. Even though the Form I-944 Declaration of Self Sufficiency asks whether you have EVER received public assistance benefits, under the law, only benefits received within the past 3 years can be counted against you. Obviously, if you have received benefits in the past, that is a fact beyond change and it must be disclosed. But the one thing you can change is how much it will count against you in the future.

Keep a low profile and stay out of trouble with the law! This should go without saying, but I think that it should be repeated and emphasized. While the United States definitely is the land of opportunity and the place where you can probably have and keep more rights and entitlements than any other country on earth, if you are not a U.S. citizen, you need to remember that you are always a guest in the U.S. and that you can be asked to leave (or made to leave) at any point in time during your visit. In the 25 plus years that I have been an Immigration Lawyer, I have only seen the grounds of conduct based inadmissibility expand and grow, both in number and in the way that they are enforced and applied. In fact, I would even go as far as saying that being on your best behavior means that you should also avoid violating regulatory offenses that are not even technical grounds of inadmissibility, such as moving violations or local code violations. While in most cases, U.S. Immigration adjudicators cannot legally use these against you to support the denial of your application for immigration benefits, the bottom line is that all adjudicators are still human (so far, as of this writing in 2020) and are thus influenced by what they see in the record of your file. The adjudicator might think that something just isn’t right with you if you have a regular history of speeding or running stops signs, for example. Like … “Why can’t this person just obey the law?” And with many applications, the adjudicators are legally allowed to apply some of their own discretion into the process (meaning that their personal opinions can be used to make final decisions). Thus, you do not want to give the adjudicators any extra reasons to deny your application, especially when your eligibility is questionable or its a borderline case (such as because your household income is barely or not quite sufficient under the regulations).

Write a Personal Statement explaining why USCIS should approve your application. Once you have gathered all of the documentation and evidence that supports your case for each of the recommendations above, write a Personal Statement (which should be signed in front of a Notary) that summarizes and explains each point. In short, your Personal Statement will read like a marketing or sales pitch that will explain why USCIS should approve your case and admit you as a permanent resident. Think about it. Why should the U.S. government want to take you in as the next immigrant and make you a part of the U.S. economy and society? We all have strengths (and weaknesses, of course). So put your best foot forward and point out all of the reasons – using the heavily weighted positive and negative factors as your guide – to explain how you believe that when all things are considered (the positive and the negative) you are a great candidate to be the next U.S. permanent resident. This is the essence of the Totality of Circumstances test and will help the USCIS officer to properly understand your case and, hopefully, take the decision to approve your application.

I hope that you have found these recommendations to be helpful. If you have any questions about this blog post or how to improve your chances of NOT being found to be a public charge in the future, contact Immigration Lawyer Sean D. Hummel and schedule a consultation to discuss your case.

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