What is the Totality of Circumstances Test for Public Charge

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What is the totality of factors test now used in determining public charge? Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States at our office here in St. Louis, Missouri.

Today’s the day that the Trump administration will implement the public charge rule. As of today, if you’ve been watching our prior videos, we’ve walked you through the public charge changes and how it’s going to affect and make it much harder for people to obtain lawful permanent resident status in the United States. In this video we’re going to talk about what’s called the totality of the circumstances test and that is the things that USCIS is supposed to look for in determining whether or not someone’s going to become a public charge.

There are seven sets of circumstances that they need to look at. We’ve already talked in prior videos about how this is going to give them a tremendous amount of discretion, but in this video, I want to go over the different factors that are supposed to be considered. I’m using my notes here because I want to make sure that we give you the best information, so I apologize in advance for actually reading.

They call this a standard, that they’re trying to standardize it or that they’re coming up with specific things to look for. The first thing that they’re going to look for is the person’s age. They’re definitely discriminating against people who are under 18 or over 67 because one of the factors, the first factor along with age, is ability to work. This goes into their narrative that immigrants just come and take and don’t work. It’s sort of ridiculous because most immigrants I know, they all work and they’re all very hardworking and contributing to society. They definitely are going to look at your ability to work as a factor in whether or not you’re going to receive public benefits. That’s the first factor.

The second factor is your health. Health has always been an issue. An intending immigrant always has to submit to a medical exam. If you have a medical condition that’s serious and may impact your ability to work or contribute to society, that’s going to be a factor that they’ll consider as well.

The third is family status. They’re going to look at your household size and your household size is going to include your applicant, the applicant’s spouse, if they reside together, their children, if either residing with the applicant or if they’re required to provide at least 50% of the child’s financial support, and anyone other than the individual for whom the applicant is required to provide at least 50% of the individual’s financial support. Basically the larger the household, the greater the likelihood is that they’re going to find a public charge.

They’re also going to look at your assets, your resources, and your financial status. This is going to go to whether or not your family is earning over and above the poverty guidelines. The poverty guidelines are going to be expanded, it’s going to be much harder, you’re going to have to show greater income, and the financial ability is going to be definitely something that they’re looking at. Your financial status, I should say. All right. There’s a long list of ways that your financial income can impact that. For instance, if you’ve received public benefits in the past or if you have high foreseeable medical costs, those are all going to be things that factor in.

All right. The fifth one is your education and skills. Along with your financial ability, the factor that we’ll see the most scrutiny is whether or not their perceived ability to maintain employment is high or low. They’re going to look at their employment history of all applicants and they’re going to look at your educational background. In order to look at this factor, they’re going to ask for your tax transcripts for the last three years. If they’re not available, an explanation as to why they’re not available.

Whether they have a high school diploma or higher, any occupational skills, certificates, or licenses. Then here’s one, whether the applicant is proficient in English and another language in addition to English. Again, this goes to what Stephen Miller, and Donald Trump, and Homeland Security is viewing as immigrants assimilating into the United States.

They want Europeans, white Europeans, to be the ones who already speak English to come to the United States. They’re going to use your ability to understand English as a factor. That’s the fifth thing.

The sixth factor is the prospective immigration status and expected period of admission. The rule does apply not just to lawful, current residents, but people seeking to enter the United States. This factor goes to people who are coming, and whether or not they’re going to look for adjustment in the future, and whether they’re going to be able to, even as non-immigrants, they’re going to have to show whether they’ve received any public benefits. For non-immigrant visas it’s going to be harder.

The last factor is the old affidavit support. In order to demonstrate how much little less weight they’re going to put on the affidavit support, they’ve listed as a seventh factor. I think that the affidavit support, it still has to be filed and it’s still important, but it’s going to be less of a factor than sort of the individual’s ability to earn. That’s sort of what we’re talking about is that the seventh and last factor is the affidavit support.

But overall you can see in these factors that I’ve listed for you in this video that it’s going to be a much more focus of the individual immigrant as opposed to the support network that they have around them, either their U.S. citizen spouse, or the family members, or the people that sign the affidavit of support.

Those are the factors. We’re going to talk a little bit in our next video about the negative and positive factors that can severely outweigh and help someone either get or not get their green card. We hope you found this video helpful. If you did, give us a call, 314-961-8200. You can email us info@hackinglawpractice.com. Be sure to join us in our Facebook group, it’s called Immigrant Home. If you like this video, follow me on LinkedIn and subscribe to our YouTube channel so that you get updates whenever I make videos just like this one. Thanks a lot, have a great day.

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