Minimum factors that USCIS must consider when making a public charge determination under the 2022 rule

We previously discussed the total circumstances of how the United States Citizenship and Immigration Service, “USCIS” determines whether a noncitizen is considered a public charge under the new 2022 rule here. This rule will be in effect starting on December 23, 2022. We discussed the announcement of the new 2022 rule here.

Under the new rule USCIS will consider as part of its totality of the circumstance analysis minimum factors in determining whether the noncitizen is likely at any time to become a public charge. These statutory minimum factors include the noncitizen’s:

Age will be considered to determine whether the applicant has the potential of earning a living while also considering any household income, assets and liabilities of others in the household.

USCIS is required to consider a noncitizen’s health when making a public charge inadmissibility determination, which may include consideration of any disabilities. It should be noted that USCIS will be looking for whether there is a physical or mental abnormality, disease, or disability serious enough where the noncitizen will require extensive medical care or institutionalization. Fortunately, USCIS will not find a noncitizen inadmissible on the public charge ground solely based on an applicant’s disability.

USCIS must consider a noncitizen’s family status, as evidenced by the applicant’s household size in a public charge inadmissibility determination.

A noncitizen’s household includes certain individuals living with the noncitizen (who may or may not contribute financially to the household) as well as certain relatives and close relations who may contribute financially to the noncitizen’s household while not residing with the noncitizen. Especially in situations where the noncitizen is too young to support himself, financial contributions from these non-cohabitating household members are included in the consideration of the noncitizen’s assets, resources, and financial status factor.

In considering a noncitizen’s assets, resources, and financial status, USCIS examines the noncitizen’s household’s income, assets, and liabilities.

USCIS does not limit the consideration of income only to income that appears on federal income tax forms and considers all evidence of income from lawful sources. USCIS also considers any evidence a noncitizen submits pertaining to expected future income.

USCIS will also consider the noncitizen’s household’s assets and resources, such as, investments, savings, or home equity, excluding any assets from illegal activities or sources, such as proceeds from illegal gambling or drug sales.

USCIS will also consider the noncitizen’s household’s liabilities, both secured and unsecured, such as loans, alimony, and child support payments which will help USCIS is able to examine the noncitizen’s overall financial status in the totality of the circumstances.

USCIS must consider a noncitizen’s education and skills that impart skills and knowledge that affect the noncitizen’s overall employability and/or ability to generate income in a public charge inadmissibility determination.

As you may note, many of these factors are connected with each other such as when a child who cannot demonstrate a potential to generate income can avoid a public charge determination by demonstrating the ability of household members to provide support through their income and assets.

An immigration attorney will always be able to determine if there are factors that will lead to a public charge finding and most often be able to find additional circumstances that could be used to avoid a public charge determination.