People are certainly talking about the new public charge rules that went into effect on February 24, 2020.  The press has covered the dramatic expansion of public benefits to be counted against immigrants when applying for permanent residence in the United States.  And many people have accurately characterized the new standards as a “wealth test.”   Yet, little attention has been given to the fact that regardless of whether an immigrant has modest means or great wealth, anyone subject to the new public charge rules will have to submit extraordinary amounts of sensitive personal information as the price of admission to the United States.

It is difficult to appreciate the difference between the new and the old public charge standards without some context. From 1999 until this week, the term “public charge” meant that an individual would likely become primarily dependent on the government for subsistence. “Primarily dependent” meant that the person would rely on cash assistance or long-term institutional care at government expense. The most common way to pass the old public charge test was to demonstrate that the immigrant had not received such benefits in the past, and that the immigrant’s sponsor or co-sponsors had household income or assets over 125% of the federal poverty guidelines.  Sponsors provided their information on Form I-864, Affidavit of Support.

Under the new public charge rules, immigration officials must weigh all positive and negative factors related to the immigrant’s age, health, family status, assets, resources and financial status, education and skills, prospective immigration status and period of stay, some factors are also weighed more heavily than others.  As of February 24, 2020, most immigrants will have to provide information about each of the factors by completing a new form, I-944, Declaration of Self-Sufficiency.

Make no mistake, the Form I-944 is much more than an applicant’s version of the I-864 Affidavit of Support still required of sponsors. A sponsor who can produce appropriate tax records to show income above the required threshold does not have to share any evidence concerning assets. By contrast, the Form I-944 provides no such exit for the immigrant.  Regardless of how high the immigrant’s income may be, she must answer questions related to all of the public charge factors and provide supporting documents to support each answer.  This is where the I-944 becomes onerous and invasive.

While reviewing the new rules I wondered, what if I had to complete a Form I-944 for myself? A couple of items struck me.

  • Household income: the form instructions require an IRS transcript for my most recent federal tax return, and those of any household members included on the I-944. ­Not too bad, so far.
  • Additional income: the form requires me to declare additional income received on a continuing basis that was not taxable. Even though my household income is above 125% of the federal poverty guidelines, I would still have to disclose this information to immigration officials. This is starting to feel like more than a test to show that I can support myself.
  • Assets: Again, even though my household income is above 125% of the federal poverty guidelines, I must provide details and documentation of all assets that can be converted to cash within 12 months. According to the instructions, if I “wish” to include the net value of my home, I must include proof of ownership, evidence of any mortgages or liens on the property, and a recent appraisal by a licensed appraiser.  What will an appraisal cost? And why wouldn’t my local tax assessment and recent mortgage statements suffice ? As for other assets, the instructions say that “if” I list assets or resources such as a checking or savings accounts I “must” provide 12 months of account statements. Now immigration officials will know exactly how much my family spends on pizza, gasoline, and groceries.  Big Brother anyone?  Still, it is unclear if the assets section of the form is mandatory or optional. If mandatory, what happens if I forget an asset? Will immigration officials assume that I am hiding something?
  • Debts: the instructions are clear, “Provide a list of all your liabilities or debts. . . Provide documentation for each liability or debt.”  Thank goodness, there are only a couple of payments left on my piano!
  • Credit Score and Report: I must provide my U.S. credit report and credit score with Form I-944. Not a problem for me but wouldn’t my mortgage and other debts appear on my credit report?  This feels duplicative at best.
  • Education: the instructions state that someone with a “foreign education should include an evaluation of equivalency to education or degrees acquired at an accredited college” in the U.S. This requirement appears to apply even if the immigrant is working in the U.S., regardless of whether the job is related to the foreign degree and how much the job pays.
  • English and Other Language Skills: I couldn’t believe my eyes when I read this instruction: “Native English speakers, or other languages if applicable, must provide documentation of language proficiency including language certifications. Evidence of language certification may include high school diplomas and college degrees showing that the native language was studied for credit.”  I was born, raised, and educated in an English-speaking country but my university degrees are in other subjects.  How would I certify my proficiency in English?

Notably, this list does not even mention the factors that have received so much attention of late: health, health insurance, and receipt of public benefits.

Bottom line, it seems the less one has in income and assets the more likely she will fail the public charge test. Yet, the more money and resources one has, the more onerous the burden will be to give vast amounts of sensitive information to the government.  It’s tempting to wish that the government couldn’t possibly mean to require intending immigrant to produce hundreds of pages of documents that could cost thousands of dollars to obtain. Remember, all documents with information in a “foreign” language must include a full, certified English translation. However, immigration attorneys know that due to recent policy changes immigrants who fail to submit what immigration officials consider “Required Initial Evidence,” run the risk of having their applications denied outright.

People are usually subjected to strip searches when entering terrible places like prisons.  Yet, the new Form I-944 Declaration of Self-Sufficiency subjects most applicants for permanent residence to the administrative equivalent as a condition of those seeking to remain in  the land of the free.

Perhaps worst of all, the government has provided no evidence to show that it can evaluate all of this information efficiently and accurately predict who will use public benefits for more than 12 out of 36 months.  Indeed, given the amount and variety of data, only an actuary could do so, which will lead to even more delays at a time when case processing times are already at a crisis-level