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Arguments and Documents to Avoid a Finding of Public Charge Inadmissibility

Our Chicago immigration lawyers have sifted through the DHS’s regulations and answers to the regulatory comments to understand the DHS decision making process when applying the public charge rules.  The Public Charge rule prescribes how DHS and the State Department will determine whether a foreign national who is applying for admission or adjustment of status is inadmissible in the United States because the foreign national is likely at any time to become a public charge.  The rule defines as a public charge a person who receives one or more public benefits for 12 months during a 36-month period.  If the person receives two benefits in one month, this will count as two in the 12 months, and a person who receives two benefits for 6 months within any 36-months-period will be considered a public charge.

The public charge rule does not apply to U.S. citizens, even if the citizens are related to the foreign national that is subject to the public charge inadmissibility ground.  However, if a U.S. citizen sponsor receives public benefits, the DHS will consider this receipt a negative factor for the alien.  The public charge inadmissibility does not apply to aliens whom Congress has exempted.  In addition, DHS has statutory discretion to waive the grounds of inadmissibility for public charge.

DHS does not have a crystal ball to determine whether an alien is likely to become a public charge.  Instead, the agency adopted a totality of the circumstances framework. Under this framework, the DHS adjudicators will review several factors and make a decision based on all of the evidence that supports each factor, and all of the evidence that supports all factors.  Because each factor can be positive or negative, and some factors are heavily positive or heavily negative, it is essential to recognize which factors can tip the scale in either direction and to offset the negative factors with positive evidence.  If overcoming a negative factor is not possible, for example,  age,  concentrate on increasing the weight on other factors to tip the scale in your favor.  Remember that the burden is the preponderance of the evidence, which means more likely than not.


As already mentioned, some factors are immutable.  You cannot change your age at the time of the application, and the age will be either a negative or a positive.  However, other factors provide more flexibility, and with good lawyering, one can make a convincing argument in one’s favor.  For example, a person may be elderly. Still, if the person has an education, good health, work experience, or is a caretaker of someone else,  these positive factors will offset the negative factor of age.   To show age, you can submit your passport or your birth certificate.  If your age is between 18 and 61, this is a positive factor.

Applicant’s Health

Good health is a positive factor.  Poor health is not necessarily a negative factor.  A negative factor will be a medical condition documented by the civil surgeon as likely to require extensive medical treatment or institutionalization or that will interfere with the applicant’s ability to provide and care for himself or herself, to attend school, or to work upon admission or adjustment of status.

If you have a medical condition, don’t despair as the agency is willing to review expert reports that can mitigate the negativity of this factor.  Your treater can provide a description, explaining that your condition is under control and that you can care for yourself or attend to your duties.  Having health insurance will also mitigate the negative impact of this factor.  Remember also that other positive factors can reduce the impact of a negative factor.

Applicant’s Family Status

The DHS will look at the size of the applicant’s family to determine whether the applicant can provide for the family needs.  Larger families offer more challenges and may be considered a negative factor, but if the applicant can support himself or herself and his or her family at 125% (100% for military members) of the federal poverty guidelines,  the ability to provide support is a positive factor.   It is crucial, therefore, to demonstrate with income tax transcripts, paycheck stubs, payments of bills, or other proof, that the alien has been a source of support for his or her family.  In the totality of the circumstances framework, a person may have earning capacity as a result of experience, skills, abilities, education, and this fact should be fleshed out to demonstrate that the applicant will be able to support his or her family.  As being a caretaker is a positive factor, a person who will take care of a person in need so that the rest of the family can work, should provide information about his or her family circumstances.  The DHS will consider one person as a caretaker per household.

Applicant’s Assets, Resources, and Financial Status

The applicant’s financial situation has several items, and each of them can have a negative or positive weight.  As current employment is a positive factor, it is vital to provide evidence of employment, or even a job offer, if the person is not authorized to work.  The gross income of the household as a unit has positive weight if it is at least 125 of the federal poverty guidelines (100% for military members).  Financial resources that would make the alien an unlikely candidate for financial benefits have positive weight.  The applicant should provide 12 months of bank statements that show available cash not just for the alien but for other household members whose income can create the pool of available resources.  Also, include any non-cash assets convertible to cash.  Non-cash assets include retirement accounts, real estate with documented ownership, location, and equity, life insurance policies. For real estate, the DHS will need a copy of the title, statement of mortgage, and a recent appraisal from a licensed appraiser.

Good, very good, or exceptional credit score  (670 and above), is a positive factor.  Applicants must request a credit report from one of the three major credit reporting agencies .  If an applicant does not have a social security or otherwise does not have credit, the applicant can show financial responsibility by providing evidence that he or she has been paying bills on time.  Health insurance is a positive factor, so it is essential to have one, if at all possible.  Having health insurance is especially crucial if the alien has a medical condition.

Negative factors are bankruptcy within the last two years, receipt of public benefits in the past, fee waivers, poor credit score (below 580), lack of health insurance, no income, or income below the federal poverty guidelines.  On the other hand, heavily weighted positive factors are having private health insurance and household income of at least 250% of the federal poverty guidelines.  Thus it is possible to balance the negative weight with putting forth more positive evidence to show that on the whole, the applicant’s assets, resources, and financial status will make the applicant less likely to become a public charge.

Applicant’s Education and Skills

Attending school is a positive factor.  As already mentioned, being a primary caretaker at home is also a positive factor. Also, a positive factor is having a high school diploma or a GED, a Bachelor’s or higher degree, or other education.  Certification and skills relevant to the education are all positive factors.  Basic English proficiency and knowledge of additional language are also positive factors.  An applicant can improve his or her education and skills by taking classes on or offline, learning skills and trades.  Online courses that end with a certificate provide documentation and a vehicle to improve your odds, and to add more positive weight to the totality of your circumstances.  Provide diplomas, transcripts, evaluation for U.S. equivalences, certificates, licenses, and other evidence of your education and skills.  The DHS will consider a negative factor lack of work experience, lack of GED or high school diploma, limited English.  The DHS will consider as an especially negative factor, if the person has a work permit but does not work.  It is important to either have a job or be self-employed, which is, after all, employment.

Applicant’s Immigration Status and Expected Period of Admission

The DHS will seek more evidence for people who are applying for permanent residence.  Because the DHS has to determine whether the alien is likely to become a public charge “at any time” in the future, the longer the intended period – “the future” –  the more evidence the DHS will seek.  Education, experience, good financial history, and other positive factors can easily offset the likelihood that one can become a public charge in the future.

Sponsor’s Ability to Support

For family-based cases and some employment-based cases, the DHS requires Affidavit of Support.  The ability of the sponsor to support the beneficiary at 125% of the FPG is a positive factor.  A familial relationship with the sponsor is a positive factor.  The sponsor’s receipt of public benefit, or bankruptcy, or even a receipt of an immigration fee waiver are negative factors.  The sponsorship of multiple applicants is also a negative factor.  For each sponsor, document the familial relationship and provide evidence that the sponsor has sufficient income.

Previous Public Charge Inadmissibility

A previous finding of public charge inadmissibility is a heavily weighted negative factor.  Finding of inadmissibility for public charge in the past is not the end of the inquiry.  An applicant can overcome this negative factor with evidence that the applicant’s circumstances have changed from “rags to riches,” including obtaining education, income, family resources and others.

Applying for admission or for adjustment of status, is much more than just completing a form.  Leaving aside the issues of entry, admission, unlawful presence, violation of status, and other obstacles, denial based on public charge is also a real possibility if the new form is not properly completed, documented, analyzed, and presented.  Doing it alone or going to a notario can result in denial and loss of filing fees.  There is also a realistic probability that a denial may result in removal proceedings or loss in I-601A provisional waiver approval.  It is important to seek legal advice before applying.  If you have questions or need assistance, you can contact the law office of Zneimer & Zneimer.

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