When a nonimmigrant foreign national applies for an adjustment of status (AOS) to that lawful permanent resident (or green card holder) U.S. Customs and Immigration Services (USCIS) must determine whether that applicant is inadmissible on the grounds of being “likely at any time to become a public charge” unless exempt from this rule. See USCIS Public Charge Resources. A public charge determination is based on someone’s likelihood of becoming primarily dependent on the U.S. government for subsistence, typically through public cash assistance or long-term institutionalization at the government’s expense. Specifically, USCIS considers an applicant’s receipt of past and/or current public cash assistance including Supplement Security Income (SSI); Temporary Assistance for Needy Families (TANF) program; and state and local cash assistance programs (General Assistance programs) as well as whether the applicant has been institutionalized in a facility such as a nursing home or mental health institution when making a public charge ground of inadmissibility determination. USCIS generally does not consider noncash benefits (except institutionalization), or special-purpose cash assistance not intended for income maintenance when making public charge determinations, nor will the agency consider benefits related to COVID-19 relief. Id. If an applicant is found likely to become to be a public charge, USCIS can deny the AOS application.
On Dec. 23, 2022, the U.S. Department of Homeland Security’s new Public Charge Ground of Inadmissibility rule went into effect. The new rule applies to any AOS application postmarked on or after that date. Id. USCIS’s assessment of this new rule will continue to be consistent with the applicable statute and the 1999 Interim Field Guidance. The agency will consider factors such as age, health, family status, assets, resources related to financial status, and education and skills when making its determination. See USCIS Public Charge Resources. Therefore, in order to assist with its assessment under the new rule, USCIS updated the Form I-485 in response to this rule and applicants and practitioners should use the Dec. 23, 2022, version of the Form I-485 moving forward. The updated Form I-485 contains approximately two pages of additional questions related to the applicant’s household size, income, and liabilities as well as the applicant’s education and skills such as certification, licenses, and work experience, etc. Id. Most nonimmigrants are ineligible for many Public Benefits, so it is generally unlikely an applicant will be “both subject to the public charge ground of inadmissibility and eligible for these public benefits prior to [the] adjustment of status.” See USCIS Public Charge Resources. However, if applicants have questions on how to properly complete the new Form I-485 they should reach out to their legal representative for assistance.