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.
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 Continue reading →