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Heavily Weighted Negative and Positive Factors for Public Charge Determination

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What are the heavily weighted positive and negative factors with regards to the public charge?

Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States out of our office here in St Louis, Missouri. We’ve been doing a lot of videos on public charge, and in this video, we’re going to talk about the heavily weighted positive and negative factors. So in a prior video, we talked about the totality of the circumstances, how there’s a list of seven factors that the government is supposed to consider in determining whether someone’s going to be able to support themselves and whether they’re going to become a public charge for purposes of adjustment of status.

In this video, we’re going to talk about a certain set of factors that they’ve set aside as heavily weighted factors. So there’s a general list of factors and then there’s going to be the heavily weighted factor. So in this video, I’m really going back to my notes. Sorry about that again. But we want to make sure that we give you the best information possible. And so in this video, we’re going to talk about the heavily weighted factors and how those can negatively or positively impact someone’s application for adjustment of status. And I think if you listen to me and go through these factors with us, you’re going to see that again, this change in the regulations is designed to only allow rich people to come to the United States or sort of plays into this anti-immigrant narrative that most immigrants are just coming to be lazy bums and not participate in society.

So in these heavily weighted negative factors, let me go over them for you. There’s four of them and again I’m going to go to my notes to make sure they get them correctly.
So the first one is that the alien is not a full time student and is authorized to work but is a unable to demonstrate current employment, recent employment or a reasonable prospect of future employment. So that goes to, again, that self-sufficiency, the form itself is called an I-944 Declaration of Self Sufficiency. And they are saying that if you have the ability to work and you’re not in school full time, then they’re saying, “Well why should we give you a green card if you can’t demonstrate a past work history or current work history or a likelihood of future employability?” So that’s the first negative factor.

And so you’re going to need to think about is a better for me to go back to school, is it better for me to go to work before I apply? So there’s going to have to be some thought that goes into when to apply for someone who hasn’t had a long work history.

The second negative factor, which will be heavily weighted, is if the alien has received or has been certified or approved to receive one or more public benefits, the ones that I listed in a prior video, for more than 12 months in the aggregate within any 36 month period. So the receipt of public benefits is going to be a highly negative factor that’s really going to impact and probably kill off your ability to adjust status.

The third one, this one’s really offensive, is whether the alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization that will interfere with the alien’s ability to provide for himself or herself, attend school, or work. So that’s again going to that self-sufficiency question, can they demonstrate that they are healthy enough to be able to work? Because that’s all we care about. That’s all we want from immigrants is them to work. We don’t care about anything else. That’s the perception or how they view things over at DHS.

And the fourth one is whether the person was founded admissible or deportable on public charge grounds before by an immigration judge or by the Board of Immigration Appeals.

Now there are three heavily weighted positive factors, and this is again showing how they prefer rich people to be able to come to the United States. And the first one is the aliens household that they have income assets or resources and support that’s at least 250% of the poverty guidelines. So before it was 125% and that was enough in and of itself. Now this is just one positive factor, but again, it’s going to rich people.

The second one is that the alien is authorized to work and is currently employed in a legal industry, not the legal industry, but something that’s legal with an annual income over 250% of the federal poverty guidelines. So roughly you’re talking about $55-, $60,000 a year.

And then the third one is that they have private health insurance and it must be appropriate for the expected period of admission and does not include health insurance for which the alien receives subsidies in the form of the Affordable Care Act. So if you can show that you have health insurance, that’s going to be an independent health insurance. And of course health insurance is a tricky thing because if your spouse is outside the United States and these rules are being applied outside the United States, how are you getting get health insurance for someone who doesn’t have a social security number and isn’t even here yet? Most health insurance companies are going to be reluctant to do that.

So these are the positive and negative factors. Obviously the negative factors are designed to really thwart people’s efforts to obtain lawful permanent residence status and the green card in and of itself, it’s going to be much harder for people to obtain. The positive factors, definitely if you can show that you’re rich or that you have a high income, you’re going to be able to sponsor someone. So we’re seeing the tightening of the net. We’re seeing the approval of the government for people that have money and means and that they really are declaring war on immigrants of lower and even middle-class status.

So if you have questions about the public charge, give us a call (314) 961-8200. You can email us at info@hackinglawpractice.com. Be sure to join us in our Facebook group, which is called Immigrant Home. And if you like this video, we ask that you please share it out on social and subscribe to our YouTube channel so that you get updated whenever I make videos, just like this one. Thanks a lot. Have a great day.

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