Public Charge Immigration, Declaration Of Self Sufficiency Form I 944 Adjustment Of Status
Author: NYC Immigration Lawyer, Green card attorney Alena Shautsova
On February 24, 2020, following a decision by the US Supreme Court not to hold the new administration’s public charge rule, the USCIS started to follow the new rule for almost all adjustment of status cases. To wit: from February 24, 2020, on, almost every applicant for adjustment of status in the United States must submit a declaration of self-sufficiency or a form that discusses in-depth, a person’s and his/her household members financial history, income sources and assets, and liabilities, health insurance history and prospects of obtaining it, English speaking abilities and education, employability in the United States and much, much more. The form itself is 18 pages long and can be found at www.uscis.gov website or here: form I 944(version of 2020) and instructions to it.
Using the answers on this form and provided supporting documents, USCIS officers will weigh negative and positive factors to see if a person’s adjustment of status application shall be granted or not. Here, we summarize the most important points concerning this new rule and the Form I-944 itself.
Who needs this form?
The short answer: almost everyone. Even the applicants who do not need and did not have to in the past to file form I 864 adjustment of status, such as those adjusting based on approved employment petition form I-140 or those who won a DV lottery. These are the only exceptions to the general rule, the following applicants for adjustment of status do not need to file Form I-944 if they are adjusting status:
- As a VAWA self-petitioner (battered wife, husband, parent, child of a lawful parent resident or US citizen), a person who self-filed form I 360.
- As a Special Immigrant Juvenile, a person who filed form I 360
- As a Certain Afghan or Iraqi national, special immigrants.
- As an Asylee, a person who won their asylum claim either with the Asylum Officer or Immigration Judge, or who is a spouse or child of the asylee.
- As a Refugee (it is someone who was admitted into the US in a refugee status).
- As a victim of qualifying criminal activity (U Nonimmigrant) under INA section 245(m);
- Under any category other than INA section 245(m) but you are invalid U nonimmigrant status at the time you file your application for adjustment of status. (This exemption only applies if, at the time of the adjudication of the Form I-485, you are still invalid U nonimmigrant status. If at the time of adjudication of the Form I-485, you are no longer invalid U nonimmigrant status, you may be required to submit a Form I-944 and a Form I-864).
- As a victim of human trafficking (T nonimmigrant) under section 245(l) of the INA;
- Under any category other than INA section 245(l), but you either have a pending application for T nonimmigrant status (Form I-914) that sets forth a prima facie case for eligibility, or are invalid T nonimmigrant status at the time you file your application for adjustment of status. (This exemption only applies if your Form I-914 is still pending and deemed to be prima facie eligible, or you are invalid T nonimmigrant status when we adjudicate your adjustment of status application);
- Under the Cuban Adjustment Act;
- Under the Cuban Adjustment Act for battered spouses and children;
- Based on dependent status under the Haitian Refugee Immigrant Fairness Act;
- Based on dependent status under the Haitian Refugee Immigrant Fairness Act for battered spouses and children;
- As a Lautenberg Parolee;
- Under the Indochinese Parole Adjustment Act of 2000;
- Based on continuous residence in the United States since before January 1, 1972 (“Registry”);
- Under the Amerasian Homecoming Act;
- As a Polish or Hungarian Parolee;
- As Nicaraguans and other Central Americans under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA);
- As an American Indian Born in Canada (INA section 289) or the Texas Band of Kickapoo Indians of the Kickapoo Tribe of Oklahoma, Pub. L. 97-429 (Jan. 8, 1983); or
- As a spouse, child, or parent of a deceased soldier under the National Defense Authorization Act (NDAA).
Please note that some applicants for adjustment of status must file a form I864W: this requirement was not altered by this new rule. For example, the form I864w has to be filed by a VAWA-self-petitioner. To state it clearer: an affidavit of support form is no longer than the only factor in determining public charge, and the fact that is may or may not be required does not by itself is tied with the necessity of filing form I-944.
What information about the applicant’s income shall be disclosed?
First, the form requires to disclose an applicant's income as it is stated on his/her tax returns. If a person has not filed his/her tax returns, the form requires an explanation as to why the taxes were not filed: either a person has no plans filing for it (why?), is going to file later under extension, not required to file, etc. Every answer demands a detailed explanation. But then, the same information is required for every member of the person’s household.
Who is the members of an applicant’s household for the purposes of the Form I-944?
It is here where things get really tricky. The form is using an expanded definition of the member of the household, much broader than the one we are all used to for the purposes of form I-864. Specifically,
- If you are 21 years of age or older, or under the age of 21 and married, list the following household members in Part 2., as applicable:
- Your spouse, if physically residing with you;
- Your children (under the age of 21 and unmarried) physically residing with you;
- Your other children (under the age of 21 and unmarried) not physically residing with you for whom you provide or are required to provide at least 50 percent of financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by you;
- Any other individuals (including a spouse not physically residing with you) to whom you provide, or are required to provide, at least 50 percent of the individual’s financial support, or who are listed as a dependent on your federal income tax return; and
- Any individual who provides to you at least 50 percent of your financial support, or who lists you as a dependent on his or her federal income tax return. So, let’s say there is a husband X who is currently resigning with a wife. X was previously married and he is supporting 2 children according to the court’s order. Children do not reside with X. X is also claiming his nephew on his tax returns as his dependent, and 3 of his stepchildren. Accordingly, X will have to list income and other relative information for 5 children and his nephew.
- If you are a child (under the age of 21 and unmarried) list the following household members on the table in Part 2., as applicable:
- Your children (under the age of 21 and unmarried) physically residing with you;
- Your other children (under the age of 21 and unmarried), not physically residing with you for whom you provide or are required to provide at least 50 percent of financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by you;
- Your parents, legal guardians, or any other individual providing or required to provide at least 50 percent of financial support to you as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by you;
- Your parents’ or legal guardians’ other children (under the age of 21 and unmarried) physically residing with you;
- Your parents’ or legal guardians’ other children (under the age of 21 and unmarried) not physically residing with you for whom the parent or legal guardian provides or is required to provide at least 50 percent of financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the parents or legal guardians; and
- Any other individual to whom your parents or legal guardians provide or other individuals provide, or are required to provide, at least 50 percent of financial support or who are listed as a dependent on your parents’ or legal guardians’ federal income tax return.
What income has to be disclosed?
Pretty much all income, including income from part-time “cash” jobs, rental income, income from public benefits, taxable and nontaxable income. The form even asks if any of the income is coming from “illegal” sources such as illegal gambling, selling controlled substances or stealing. However ridiculous it sounds, IRS does want a person to declare the income from illegal sources and tax a person on it. The proof: many high-end criminals went to prison specifically due to failure to pay taxes on illegal activity rather than for the underlying crimes they committed. Form I-944 asks to provide information on non-taxable income and references U.S. Tax Code! An example of non-taxable income is most life-insurance proceeds, some settlement amounts, etc.
The form further asks to list any assets from the applicant and his/her household members.
Which Assets shall be disclosed?
Only assets that can be converted into cash within 12 months can be taken into consideration. In addition, the assets have to be free of debt. For example, if a house value is $500K, but there is a $350K mortgage, the asset value coming form this house would be only $150K (minus to any liens and other liabilities). The value of the home is determined by the licensed appraiser. A car can be listed as an asset only if the applicant or his/her household member has a second car. A value of jewelry can be declared as an asset, together with the value of stocks, bonds, and other financial instruments.
For the saving and checking accounts statement: a person would have to produce 12 months worth of statement prior to the date of filing for the application.
What about debt and liabilities? Do I need to disclose my school loan?
A person and his/her household members also must list all liabilities, including credit card debt, child support, mortgage, car loan, personal loan, educational loans! Documents proving the same must be attached.
Do I need to provide my credit report?
Yes, an applicant will have to provide a credit report from one of the 3 designated credit report agencies. Any negative information on the credit report will have to explain. If a person does not have any credit history in the US, he/she can demonstrate that he/she has been paying his/her bills, and present a letter from the credit agency about the absence of history. A bankruptcy filing must be disclosed and explained as well.
Health Condition and Health Insurance
A person’s health now is in the center of the public charge mechanism. If a person has a medical condition that requires or may require prolonged treatment and no private health insurance, this will be used as a heavy negative factor for one’s adjustment application. Hence, a person’s ability to secure private health insurance is a very important question for USCIS. The form asks to provide a health insurance policy letter confirming enrollment and dates, a copy of the health insurance card is not enough! The form asks if you are receiving a premium tax credit as well, and the instructions direct to provide relevant tax documentation from the health exchange office. If the applicant does have a medical condition, he/she can provide a letter from the doctor regarding the prognosis and treatment and if this medical condition impacts an applicant’s ability to work or go to school. A person may also demonstrate through assets that he/she has funds to fund the treatment.
Receipt of which public benefits must be disclosed?
Of course, receipt, application or approval for public benefits is one of the most important areas of inquiry in relation to the public charge inadmissibility test. But not all public benefits will matter. First, pubic befits received by US citizen family members will not count against the applicant. For benefits received before February 24, 2020, an applicant will only need to report receipt of SSI, cash, TANF, General Assistance, and benefits received for long-term institutionalization. Receipt of SNAP, Medicaid (other than Medicaid benefits used to fund long-term institutionalization), Section 8 Housing Assistance under the Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation), and Public Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq. if received before February 24, 2020, does not need to be reported.
What about Medicaid?
The following benefits must be disclosed but will not be taken into consideration if an applicant presents satisfactory proof:
Medicaid for children under 21 years of age, emergency Medicaid, benefits received by pregnant women and 60 days after the last day of pregnancy; the receipt of Medicaid for services provided under the Individuals with Disabilities Education Act (IDEA); the receipt of Medicaid for school-based non-emergency benefits for children who are of an age eligible for secondary education as determined under state law; Received public benefits while in a category that is exempt from public charge inadmissibility; or Received public benefits while in a category for which you received a waiver for public charge inadmissibility; Child of U.S. citizens whose lawful admission for permanent residence and subsequent residence in the legal and physical custody of their U.S. citizen parent will result in the child’s automatically acquiring U.S. citizenship upon meeting the eligibility under INA 320; or • Child of U.S. citizens whose lawful admission for permanent residence will result automatically in the child’s acquisition of citizenship upon finalization of adoption (if the child satisfies the requirements applicable to adopted children under INA 101(b)(1)), in the United States by the U.S. citizen parent(s), upon meeting the eligibility criteria under INA 320; and at the time of receipt of public benefits an applicant was an alien enlisted in the U.S. Armed Forces, or serving in active duty or in the Ready Reserve component of the U.S. Armed Forces; or the spouse or child of an individual enlisted in the U.S. Armed Forces, or serving in active duty or in the Ready Reserve component of the U.S. Armed Forces.
To make life easier, an applicant can also present a letter showing he/she does not qualify for the public benefits. The letter has to come from the Federal, State or local agency.
Importantly, if you ever received a fee waiver for Immigration filings, you must disclose this information: when it was received and for which filings!
The form further examines an applicant’s educational background and skills, it calls for the production of diplomas, with translation, proof of any professional license, information about the agency that issued them, its validity, etc. If an applicant was a primary caretaker for a family member, that has to be proved with records showing that both resided together and records confirming a person’s age and medical condition.
English Language Skills
An ability to use the English language is a positive factor. But even native English speakers must provide certificates regarding English language proficiency. For example, a person from the UK would still have to provide a copy of the High School credits showing that the English language was studied for credit.
What if an applicant is retired?
For retired individuals, the forms call for information regarding their pension, savings, social security income or income from other sources.
All this information, will be gathered and evaluated by a USCIS officer, who will have to determine if a person has heavy negative factors in his/her file such as lack of employability in the US (unless he/she is a full-time student), has an underlying medical condition which requires an extensive treatment and no private health insurance, has used public benefits and/or has a past finding of public charge in his/her file by an Immigration Judge or a BIA. Or perhaps, a person has positive factors such as an applicant’s household income is at least at 250% of the Federal Poverty Guidelines; a person is authorities to work and is currently working legally with the income of at least 250% of the FPG, a person has private health insurance and does not receive subsidies.
All this, will be evaluated and a determination will be made whether or not a person will be able to adjust in the United States...
If you have questions regarding this new requirement and the form I944, please reserve a consultation with Alena Shautsova by calling 917-885-2261.