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New Public Charge Rule Factors and Applying Outside the USA

In this 4th video about the new USCIS Public Charge rule, immigration attorney, Andres Mejer, explains several factors that are now considered as part of your green card application. How your family size is now weighed with your application. How has the rule expanded household size. How your health could cause you to be denied. Serious health factors are being weighted more heavily now in the approval process. What does Andres recommend you do differently when you get a health exam NOW because of this change in policy. How your income and assets will be more closely reviewed. Andres explains all 7 factors now considered under this new Public Charge policy. Andres also answers a question we have received from several of our international viewers: How has consular processing changes under the new rule?

Transcript (Transcripción):

Andres Mejer :Welcome friends to the English version of our weekly program. But I say they got to be legal. Today, we’re continuing our conversation with the public charged. Thank you for your questions and comments. The first thing we’re going to talk about is, hey, I U.S subject in public charge if you’re going to consular process processing. That came from questions from one of you. So thank you very much,.

Andres Mejer :Welcome to Para Ser Legal to be legal. And today we’re continuing our conversation of the public chocks. First and foremost. Question from from one of you. Are you subject to the public charge? If you consular process, What’s consular process?

Andres Mejer :Well, consular process. I’m glad you asked. Consular process is when you’re applying for your Green Card. In this case, outside of the United States. So the most obvious example is someone entered either. So I left. I went to the U.S., I went on vacation and I found my soulmate. I come back and I want to apply for her. She’s going to have. She’s gonna be interviewed outside and not say it’s because she’s not in the U.S. or if she came into the United States, but she came without permission. She can’t what’s called adjust her status. She can’t get interviewed in the U.S. in order to receive a Green Card. She’s going to have to leave and be interviewed outside the United States and that by a process called consular processing. So today, everyone is now subject to the public charge. Unless you’re exempted. If you’re seeking a Green Card, no matter if you file for adjustment of status, which is interview in the United States or consular process interview outside the United States. Either way, you have to deal with the public charge.

Andres Mejer :Now, the disem, the Department of State. So if your consular process, you go in to the U.S. embassy or consulate in the country using the country where you’re born. Now, that’s the embassy under the Department of State. Immigration is USCIS. So the Department of State came up with their own rules and their own questionnaire. It’s form DS5540. Now, the Department of State rule generally follows the same new provisions that were announced by the Department of Homeland Security. The only difference is DHS gives you a 19 page form. And Department of State, it’s only a four page form. They still ask the same questions. They just jam it in so small it’s hard to see. But, you know, it doesn’t look as intimidating when it’s four pages. 19 is just it’s a beast.

Andres Mejer :What happens if you started the process? Right. So your husband filed for you. Let’s go back to the example that I just provided. I went abroad on vacation. I met my soulmate. I came back, I married her. I came back and I want to file for her.

Andres Mejer :Well, I did it before the new rule changes because it takes about a year to get to get that approved nowadays. So at the time, I was not required the father public charge documents. And guess what? I may not be. I may not be required to do so. So if today you filed it and you’re in, the immigrant has not received an interview yet, I would suggest preparing it and taking it with you. It’s better safe than sorry. You don’t want to prepare it and give them ammunition that otherwise you might not need. But an immigration department state is not supposed to deny the application without giving you opportunity to fill out the form because hey, when you started that requirement didn’t exist. It only became a requirement after the fact. They’re not supposed to. They’re not supposed to deny you without giving you that opportunity. But better safe than sorry. Get, you know, collect the supporting documents, fill out the DS 55 40 and take you with you or give it to the immigrant. Have the immigrant take with her just in case.

Andres Mejer :Number two, how your family size and income or assets can make you a public charge. So, listen, let’s put this in context. Before February 24th, 2020, the standard is pretty straightforward. The question was, what was your family size and did your sponsor have income? That was one hundred twenty five percent or more over the federal poverty guidelines and the federal poverty guidelines. Ah, are registered online. It’s form 864. Pete, you know, it changes every year, but not too much. So it really was mostly income. And if income was enough that absent. So if your sponsor didn’t have enough income, the question becomes, does she have sufficient assets?

Andres Mejer :So what is the value of those assets? And it has to be five times the difference between the income she had and the income she needed to show. If that wasn’t enough, then she needed a joint sponsor. Now, the joint sponsor often is a relative. Parents in some cases said. Things, but it doesn’t have to be it could be anyone who’s a U.S. citizen, a lawful permanent resident, doesn’t have to be family. Maybe now it should be with the changes. You know, family is more likely to help each other with the new requirements. So they’re good. They’re looking at whether the person who’s finding it actually will support it actually will prevent you keep you from filing for government benefits. Now, if it’s if it’s a relative, they’re more likely to do so. Food for thought. Something to consider with your attorney before you file. Now, let me give an example. And Maria is a U.S. citizen. She’s applying for a husband, George. They had one child the other. So it’s a household of three. So the the poverty guidelines is for a family of three is twenty one thousand seven hundred and twenty.

Andres Mejer :Now they have to show one hundred twenty five percent over the poverty guidelines. So that’s twenty seven thousand one hundred fifty for each additional dependent that the family has. It’s another four thousand four hundred eighty. Let’s round up and say five thousand. So if Maria needs to show income of twenty seven thousand one hundred fifty, let’s say she’ll make twenty five. You know, she doesn’t work full time.

Andres Mejer :So she needs to have assets that are five times the difference between twenty seven thousand four hundred fifty, which she needs to show in her actual income. Twenty five thousand. So that difference is ten thousand seven hundred fifty. So it’s the difference is two thousand one hundred and fifty times five is ten thousand seven hundred fifty. So she needs to show that she has assets over that amount. If she does it, she will need a joint sponsor. That’s the process pre February 24th, 2001 under the new rules. The process becomes much more complicated and more subjective. The officer will now consider seven factors to decide whether the immigrant will more likely than not become a public charge for each factor. They are standards which determines how the factor is to be assessed. If that sounds complicated, it’s because it is and it’s done purposefully. So what are the seven factors age? We spoke about last time health. We’re going to talk about here. Family status. We’re talking about here assets, resources and financial status. We’re talking about right now education skills. Likely next week, prospective immigration status in period of admission for non immigrant visa. So that’s not something you need to worry. If you’re applying for a Green Card that you come into as a student visa, you come into the J-1 visa or an H1-B, then you need to worry about that. But for now, you don’t. And the lastly is the affidavit of support, which will also likely talk about next week. So here’s what DHS considers to day to decide if you will be a public charge due to family size and income. All right. So first, what is your family status or immigration really means? What’s your household size? The rule expands household size to the immigrant, the immigrant spouse, the immigrants, children either residing with the immigrant or if he is required to provide at least 50 percent of the child financial support. Think child support obligations and any one of the children for whom the immigrant must provide at least 50 percent of their individual support. So if you listed dependent on your income tax records, they will be part of your household. If you say you support them, then immigration will take you at your word and you will need to show sufficient income, which if you think about it, is fair. If you’re lying to the IRS to save money, it will cost you more in this context. But it is based off the number of dependents that you have when you follow your income taxes. Second, so first is what’s your family sign? Second, how much income or assets do you need? So everybody in your household has to submit their most recent income tax records. Now, if it’s your child, then you’re dependent. They don’t need to file income taxes. They’re included in your process. So in your tax records. But anybody else in your household, when you did tax transcript for them, the weather for the last year, and they’ll ask what’s the income for each of the last few years? You can also include legal income that’s not included in tax returns as long as you can prove it. So legal income maybe’s child support that you get.

Andres Mejer :Maybe it’s a pension that you receive. Maybe it’s a settlement from personal injury or worker’s comp case. Maybe it’s an inheritance that you received after when your parents passed away and they left you some assets. So, you know, whatever it is, you just need to show and need to document it. So second is how much income or assets do you need?

Andres Mejer :One do you have now, again, if your income is not enough? Then integration will evaluate your assets as before. Assets will need to be equal to or greater than five times the difference between your household income and the hundred twenty five percent of the poverty guidelines.

Andres Mejer :So again, in the example we gave before with George Amaria household of three, you need to show income of twenty seven thousand one hundred and fifty. So that’s that was the minimum for a household. The three if the income. Maria made twenty five thousand. She didn’t have enough. So she needs to show assets of five times the difference of those two numbers which is two thousand one fifty times five was ten thousand seven hundred fifty. Now what assets are articles are sufficient checking and savings accounts. Annuities. Stocks and bonds. Certificates of deposit, retirement and education accounts.

Andres Mejer :And if you own a home, you’re going to need to have a recent licensed appraiser that’s new in the past. You didn’t need that. You know, you can use an old appraisal. You could use a tax assessment. You can go to Twilio or Zulia Trulia and use that information. And that was sufficient. Now it’s not so for every checking account, annuity or stock or account like that, you have. You need to show the past twelve months of statements and type of documentation. So first, what’s your what’s your household size? What’s the income need to show? And then you have enough. If if you have enough, you’re done. If you don’t have enough to eat assets, if you don’t have enough, you’re going to need a joint sponsor. Now, the third that immigration is going to consider is. Do you have sufficient resources to cover any reasonably foreseeable medical costs? If you’re perfectly healthy, they’re not suggesting you need to have an extra $20000 just in case you might get sick.

Andres Mejer :What if Maria was disabled? What if she was epileptic or she’s schizophrenic or she’s bipolar or I don’t know. She has something that keeps her from the probability to work or sometimes because of the disease, she can’t work regularly. Well, then they’re asking, is there enough reasonable, you know, resources to cover those reasonable, foreseeable medical costs? The focus is principally on working age household members if they are sick. This affects their ability to earn money and contribute to the household.

Andres Mejer :Anybody in your household with significant medical issues will be a negative factor unless there’s health health insurance to cover that. And fourth, what are your financial liabilities? In other words, what are you up old now? Now you have to provide your credit score. Now, if you don’t if you have any negative credit history, you’re going to have to explain it. If you don’t have a credit credit score, which is coming for immigrants, since they typically don’t have a security number, you just need to prove evidence of that. So provide a copy of your search and show the negative results. Fifth, whether the immigrant has applied for been certified to receive or received public benefits. Now remember, this is before February 24th. Point 2020 shouldn’t count, but you’ll need to provide documentation from the agency that Gaber certified the benefit. So look, they’re just looking at if you ever filed for it or if you filed for it recently. Well, that’s an indication to me. Far forward in the future. If you make over one hundred point four percent of the federal poverty guidelines, you’re going to avoid this issue. If you don’t, it’s an admission that you can qualify for public benefits. And DHS is going to scrutinize that joint sponsor much more than they did in the past.

Andres Mejer :Look, bottom line, it’s not clear anymore. Now it’s about how clearly you tell your story and how you present the positive and negative factors. A good attorney will make all the difference.

Andres Mejer :They’re even considering if you requested a fee waiver on any prior immigration application, that’s a negative factor because it showed that you weren’t making enough money. Now, if your income is over two hundred and fifty percent over the federal poverty guidelines or just double what you normally need, that is considered a highly positive factor in your favor. So what does that mean? Let’s go back to Jorge and Maria’s example. Family household of three hundred twenty percent poverty guidelines is twenty seven thousand hundred fifty two hundred fifty percent, or double that amount is fifty four thousand three hundred. Now, what happens if your household is five people? Well, two hundred twenty five percent over the federal poverty guideline is thirty eight thousand three hundred fifty double that or two hundred and fifty percent is seventy six thousand seven hundred. If you make that money that again, it’s now it’s. Does the household have that? If it does that, you’re not likely to be a public charge. Now let’s look at whether your health will. Make you a public charge? Look, it isn’t that the new rule has really changed factors around health issues. It’s just that the focus now is about the Imogen’s ability to work and care for himself to attend school or work.

Andres Mejer :Serious medical conditions have always been a risk factor. But the government will systematically focus on it. Now, you’ve always had the wouldn’t say always, but for the past 20 years you’ve had to file G639 medical report with any Green Card application. This form is filled out by a civil Gerke surgeon in both the adjustment and consular process situations. Civil surgeon is just a doctor, but it’s a doctor that’s been certified to be able that knows how to fill out this exam and knows the government is looking for. It’s not a new form. Now the form is only valid for 18 months. So if you go see a civil surgeon in your application is filed within 60 days. It’s good for 18 months. Otherwise, it’s going to good for a year. We typically file it. We tell you to go see the doctor only after you have your notice for your interview because if things are taking so long. But now what? No changes. Now I’m going to recommend you get it right away, because I want to know what the civil surgeon is going to say. No, listen. You’re going to give you a sealed document. You have to present that sealed document to improve the ratio. But that doesn’t mean they can’t give you a copy. Or that doesn’t mean they can give your attorney a copy to see, hey, is there a problem here? You know, before you leave the United States, we want to know if you come back. So in the past, we weren’t really worried about now. Maybe we need to be worried about it. So if there’s an issue, you’ll need to fix it before your file. If you have a health issue, you need to have health insurance to cover it. This still won’t address any time lost from work while you receiving treatment, but at least it suffers. It fixes the financial ability to pay for it. So the way to show this is that you have you’ve had this condition for some time. You show how it has affected you. You need to tell a story that will be self-sufficient. So how do you intend to do that without government assistance? So I have clients that, you know, they have kidney failure. They have kidney problems. They’re on dialysis. And yet they still work.

Andres Mejer :It’s incredibly difficult. Do they’re weak. They’re tired, you know, but they do it anyway because they have to. Last subject today. What benefits? What governmental benefits will cause you to be a public charge? All right. So the new rules punish receipt of vital health, housing and nutritional programs, including federally funded Medicaid. There are exceptions. SNAP benefits, which used to be referred to as food stamps and Section 8 housing benefits. So adding consideration of these benefits to the public. Charge analysis, however, has limited legal impact. Why? Because most immigrants were on a path to a Green Card don’t have access to these benefits and you don’t qualify if you don’t have a social work authorization. You’re not going to get it just because you necessarily need it on the federal level. Every state is different. So if you apply for state benefits, you could be disqualified. Now, if they do qualify. Chances are they’re in an immigrant category that is exempt from the public charge. Think special live in juvenile u. Visa Asylum Valois. All of those are exempt and Nick and many of them can and should apply for benefits.

Andres Mejer :Now all use of cash aid like Tampa or SSI not just that, but also any state or local cash assistance program can make you inadmissible under the public charge. So again, federal, you either are exempted from public charging and or you don’t qualify to get it. But the state. That’s not the case now. A public benefit means any of the following forms of assistance.

Andres Mejer :Let’s be specific now. Any of the following asked her well, on or after February 24, 2001. So again, any federal, state, local or tribal cash assistance for income maintenance, including SSI, Supplemental Security Income and Temp Temporary Assistance for Needy Families, Housing Choice Voucher Program Project pays rental assistance, including moderate rehabilitation, subsidized housing. I think Section 8 now Medicaid except for the following. So benefits received for an emergency medical condition. Now services are benefits funded by Medicaid, but provided under any of the following one.

Andres Mejer :Individuals with disabilities education. They’ll think of a parent too, as a child with autism. Well, that individual gets benefits from school. That’s been an issue as doctors and you know. Therapists that are paid for by medical school based services or benefits provided to individuals of secondary school age mean up to high school benefits received by an immigrant and by someone immigrant under 21 years of age.

Andres Mejer :So minor. The immigrant who’s under 21 benefits received by a woman during pregnancy or during the 60 day period beginning on the last day of the pregnancy. So up up to 60 days after pregnancy. So again, if you receive Medicaid benefits, but there but they’re under the IDA from school, you’re under 21 or you are pregnant.

Andres Mejer :Those are exempted and will not disqualify you. So thank you very much for listening to us. Listen, public charge is scary business. It is a big change, but it is a manageable change. It’s a function of how you tell your story. And now your story has expanded to how you’re a self-sufficient immigrant.

Andres Mejer :My name is Andres Mejer. So thank you for listening. Please, if you have any questions or comments, post them down. Subscribe to our channel.

Andres Mejer :We’re here to help. Until next time.

Take this free test to see your actual risk of being deported and what you can do to stop it.

Ice Deportation

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¿Te preocupa la deportación?