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Tag: Green Card FAQ

  • Public Charge Final Rule and How It Affects Immigrants

    On September 9, 2022, the United States DHS published a final rule on ‘public charge,’ which took effect on December 23, 2022. This rule clarifies how DHS will determine inadmissibility on the grounds of being a public charge. 

    The rule restores the historical understanding of this ground of inadmissibility, which refers to the possibility of denying a green card, visa, or admission to the United States to a person who is likely to become a burden on the state by relying on public assistance.

    What Is a Public Charge Rule?

    A“public charge” rule is a ground of inadmissibility. Grounds of inadmissibility are factors that can disqualify an individual from obtaining a green card, visa, or admission to the United States. Immigration officers use this rule to determine if an applicant is likely to rely on government assistance in the future, which would make them a “public charge.” However, only some applicants are subject to this rule, and it only applies to some green card applicants.

    What Is the Test for Public Charge?

    In immigration applications, many noncitizens are not required to undergo a public charge test. However, for those who need to take the test, federal law dictates that immigration officials must consider certain factors to determine whether the individual is likely to become a public charge. These include:

    • Age
    • Family status
    • Health
    • resources
    • Assets, resources, and financial status
    • Education and skills

    For some applicants, an Affidavit of Support (USCIS Form I-864) is also required.

    Under longtime DHS policy and the new DHS final rule on public charge, the only public benefits that immigration officials look at as part of the public charge test are:

    • State, Tribal, territorial, or local cash assistance for income maintenance
    • Supplemental Security Income (SSI)
    • Temporary Assistance for Needy Families (TANF)
    • Institutionalization for long-term care at government expense

    Does the Federal Government Consider Public Benefits as Public Charge?

    The federal government excluded many public benefits and services for healthcare, nutrition, housing, and other specific purposes in the public charge test. These include:

    Some of the excluded benefits excluded from the public charge test are:

    • Medicaid (except for long-term institutionalization), CHIP, Medicare
    • SNAP, WIC, free and reduced school meals
    • COVID-19 Vaccines, testing, and treatment 
    • Home-based or community-based health services
    • special-purpose or supplemental benefits such as child care or utility assistance
    • Public housing and shelter

    Additionally, the latest DHS final rule on public charge makes clear that:

    • The federal government will not consider the benefits the family members other than the applicant (such as a U.S. citizen child) receive in the applicant’s public charge test.
    • The public charge test does not include being in an institution for short-term rehabilitation or criminal conviction.
    • Disability alone is not enough to make someone a public charge.
    • Receiving benefits considered in the public charge test does not automatically classify someone as a public charge.

    Does Public Charge Apply to All Immigrants?

    Many noncitizens are exempt from the public charge test in their immigration applications. According to current law, the new DHS final rule on public charge, and DHS policy, the following groups generally do not have to undergo the public charge inadmissibility test: 

    • People applying for or granted:
      • Asylum
      • Refugee status
      • U or T visas
      • Special Immigrant Juvenile Status (SIJS)
      • VAWA self-petitions
      • U.S. citizenship
    • Individuals seeking to apply for or renew DACA (Deferred Action for Childhood Arrivals) or TPS (Temporary Protected Status)

    Related: Deferred Action for Childhood Arrivals

    Overview of the Public Charge Rule

    The 2019 Public Charge Rule

    In 2019, the government modified the “Public Charge rule” during the Trump administration to make it more difficult for people to obtain green cards and visas. The new rule expanded the definition of dependency on government benefits and added the consideration of the future likelihood of reliance on such benefits. This change resulted in a decrease in the number of people who were eligible for these documents.

    In 2019, two versions of the “Public Charge” regulation were released: one by the Department of Homeland Security (DHS) that applied to green card applicants within the United States and another by the Department of State (DOS) that applied to those outside the United States. Both versions of the rule are no longer in effect. The Biden administration halted the DHS rule on March 9, 2021, and a court order stopped the DOS policy on July 29, 2020. 

    In 2019, DHS created the basis for denying green cards to immigrants in the United States. 

    These include:

    1. Prior use of specific public benefits: 

    The DHS expanded the definition of public charge to include common benefits such as:

    -Food Stamps 

    -Medicaid 

    -Federal housing subsidies

    – Housing assistance

    If a person uses one or more of these benefits for more than 12 months within 36 months, DHS could deny their application for a green card.

    2. Leveraging public charge benefits in the future:

    The DHS included some factors which the immigration department will consider to determine if a person could become a public charge in the future. 

    These include:

    • Age: Applicants are only eligible if they are above 18 (incapable of working), older than 61 (minimum retirement age), or not within any age that affects their ability to work. This was important in determining whether an immigrant would become a public charge in the future.  
    • Health: DHS scrutinizes each applicant to ensure their health will not affect their ability to work.
    • Family size: Having a large family could increase the likelihood of a visa denial.

    3. Education and Skills:

    Applicants need to show that they can obtain and maintain employment. Applicants’ employment history, high school diploma, occupational skills, credentials, and proficiency in English and other languages greatly determine whether they get a visa or a green card.

    4. Financial status:

    In addition to looking at the applicant’s income and assets, the DHS looked at other factors. These factors are credit history, credit score, and financial liabilities. Also, whether the applicant has enough insurance to cover medical costs. 

    Public Charge Rule in 2022 

    The United States government proposed the new public charge rule on February 24, 2022, based mainly on the 1999 public charge rule. It was published as a final rule on September 9, 2022, and became effective on December 23, 2022.

    The Department of Homeland Security (DHS) will not consider an individual’s participation in noncash benefits programs, such as Supplemental Nutrition Assistance Program (SNAP), public housing, or school lunch programs, when determining if the individual is likely to become a public charge. The only exception is if the individual receives long-term institutionalization at government expense.

    Public Charge Final Rule on December 23, 2022: What’s New?

    From December 23, 2022, all applicants for a green card in the U.S. will submit the latest version of Form I-485 (Application for Adjustment of Status).

    The form has undergone some changes, and the government will request new data from applicants: These include:

    1. Attempting to Balance Your Income/Assets with Your Debt

    The new form requires applicants to provide details about their income, assets, and debt amounts. These include home loans (mortgages), vehicle loans, student loans, and commercial/small business loans. While revolving debt like credit cards and subscriptions may be considered less important, it is still recommended to report them if they are significant (over $10,000). 

    2. The Government Will Ask for Information about Your Education, Skills, and Qualifications

    You will need to disclose your highest level of education, professional certifications, and job skills. The government will use this information to assess your employment likelihood and identify potential professions for you.

    3. Public Cash Benefits Collected from the U.S.

    As a non-U.S. citizen or permanent resident, using public benefits, particularly cash benefits provided by the state or federal government, can negatively impact your immigration application. It is important to note that these benefits are often restricted to U.S. citizens or their family members. Additionally, the government may inquire about whether you have been institutionalized at U.S. government expense.

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    What Does This Mean for Immigrants?

    U.S. Citizenship and Immigration Services (USCIS) has included some guidance on what is and is not necessary for the benefit section of the form. 

    According to the new form instructions from the USCIS, you do not need to include additional evidence with your application to support the information you have provided on the form. However, the agency may request further evidence, called a Request For Evidence (RFE), if it requires more documentation to decide on your application. 

    You may be concerned about the potential impact of the public charge final rule on you. Call our office at 914-481-8822 to schedule a consultation with an experienced, knowledgeable immigration attorney. This will give you the opportunity to discuss your specific circumstances and receive professional guidance on how to proceed.

  • Green Card Through Marriage: Everything You Need to Know

    Green Card Through Marriage: Everything You Need to Know

    If you marry a United States citizen or lawful permanent resident, you could be eligible for a green card. A green card is proof that you’re a lawful permanent resident of the U.S., and it enables you to live and work anywhere you wish. But how do you get a green card through marriage, and when do you become eligible? This guide explains everything you need to know about getting a green card based on your marriage to a U.S citizen or lawful permanent resident.

    What is a Marriage Green Card?

    There isn’t a special type of green card for people who marry United States citizens or lawful permanent residents; everyone gets the same type of green card. However, the eligibility requirements for a green card through marriage are different than they are through other paths. Often, people find it easier to get a green card through marriage then they do through a work visa or another program.

    Before you can apply for a marriage based green card, you must be married to a U.S. citizen or lawful permanent resident.

    Your sponsor has to petition the U.S. government for your green card. Your spouse is considered the petitioner or sponsor for your green card, and you’re the beneficiary. You aren’t allowed to apply for your own green card through marriage except in special circumstances. (See the later section, “Green Cards for VAWA Self-Petitioners,” for more information.)

    Working on a Green Card

    When you have a green card, you can work anywhere you’d like without special authorization from the government. That’s true even if you came to the United states on a work visa or you needed an Employment Authorization Document (EAD) to work before you married your spouse.

    Going to School on a Green Card

    You’re allowed to attend a college, university or trade school when you have a green card – there’s no special authorization required. You may also participate in on-the-job training programs, get an apprenticeship or attend special certification courses without permission from the U.S. government.

    Related: What happens if you abandon your green card?

    Who Qualifies to Get a Green Card Through Marriage?

    You may be eligible to get a green card based on your marriage to a citizen or lawful permanent resident. However, your marriage must be legally valid and genuine. U.S. immigration law says that it must be a bona fide marriage. That means that you’re married because you want to spend the rest of your life with your spouse – and that you didn’t simply marry them to get an immigration benefit (like a green card).

    You must also be admissible to the United States.. You’re inadmissible (meaning that you can’t enter the U.S.) if any of the following grounds of inadmissibility apply to you:

    • You have a serious substance abuse problem.
    • You’ve been convicted of drug trafficking.
    • You don’t have the proper vaccines to enter the country, or you have a communicable disease “of public health significance,” such as tuberculosis. However, waivers are sometimes available.
    • You’ve been convicted of or admitted to a crime of moral turpitude. A crime of moral turpitude is a crime that most people find shocking or against the rules of morality. Some examples of these crimes include murder, rape, spousal or child abuse, and animal fighting. There are many other crimes that fall under this term, as well, but sometimes waivers are available.
    • You violated immigration laws, though you may be eligible for a waiver.
    • You’re a spy, terrorist or insurgent, or Nazi.

    Even if you’re already in the United States, the government must determine that you’re admissible before you can get a green card through marriage (or through any other means).

    Waivers are available for some grounds of inadmissibility. Your Port Chester immigration attorney can talk to you about the specifics if any of them apply to you.

    Eligibility Requirements

    If you’re admissible to the United States and you’re married to a green card holder or U.S. citizen, you may apply. However, your spouse must show that they have the financial means to support your entire household. Additionally, your spouse must actually live in the United States (or intend to return to the U.S. with you if you’re both living abroad).

    Can Your Kids Get Green Cards, Too?

    Your unmarried, foreign-born children may be eligible to get green cards at the same time you do if they’re under the age of 21 at the time you apply. It’s okay if they’re not your current spouse’s biological or adopted children. They may be eligible based on their relationship with you, rather than their relationship with your spouse. You should talk to your immigration attorney about obtaining marriage-based green cards for your children; she can give you the legal advice you need.

    Guide to Green Card Marriage in the United States

    Applying for a Marriage Green Card

    Many people choose to work with an immigration attorney to get a green card based on marriage. That’s because the application process can be complicated and time-consuming, and even a small error could lead to rejection.

    When your attorney helps you apply for a marriage-based green card, she’ll file Form I-130 to establish your marital relationship. She needs to include several types of documentation with this form, including proof that your spouse qualifies to sponsor you and that you’re legally married. Your attorney will also include proof that you’re in a bona fide (genuine) relationship with your spouse, such as:

    • A joint lease
    • Joint bank statements
    • Photos of you and your spouse together
    • Receipts for gifts you and your spouse have gotten each other

    Then, your attorney will fill out and file Form I-485 or Form DS-260 for you. That form also needs supporting documentation, including proof of your nationality, that you entered the U.S. lawfully, and that you don’t have any communicable diseases that could pose a public health threat. Your lawyer may need to fill out a number of other forms, too, depending on your situation (such as an application for employment authorization or for travel authorization). You may also need to provide USCIS with other types of documentation, which your attorney will explain to you.

    Green Cards for VAWA Self-Petitioners

    Under most circumstances, your spouse must petition the government for your green card. You’re not allowed to apply for yourself. However, in some cases, people are allowed to apply for their own green cards. If you’re the victim of domestic abuse or cruelty, you may be eligible to apply for your own green card under the Violence Against Women Act (VAWA). You don’t have to be a woman to apply; it’s open to all victims of abuse or cruelty.

    If you apply for your own green card this way, you’re called a VAWA self-petitioner. You may still be able to get a green card without your spouse’s knowledge or consent. If you’re in a situation like this, let your attorney know – she can help you fill out and file the appropriate forms with USCIS.

    Related: What happens to your work permit after cancellation of removal?

    The Marriage Green Card Interview

    After your attorney has filed your petitions and supporting documentation, you have to participate in a green card interview. A U.S. Citizenship and Immigration Services (USCIS) officer will interview you. This officer’s primary job is to determine whether your marriage is genuine. That means the officer looks for evidence that you married just to get a green card – and if they find any, the government will deny your petition.

    Your interview will take place at the USCIS office nearest your home. If you live abroad, your interview will take place at a U.S. embassy or consulate in your home country.

    How the Length of Your Marriage Determines What’s Next

    If you’ve been married for fewer than two years and USCIS approves your petition, you’ll receive a conditional green card that’s valid for two years. If you’ve been married for more than two years, you’ll receive a permanent green card that’s valid for ten years.

    A Word on Conditional Marriage-Based Green Cards

    A conditional green card is only temporary. It’s valid for two years. Before those two years are up, you must apply to remove the conditions; if you don’t, the government can deport you. (The condition is really that you remain married to your spouse for at least that length of time.) Your attorney can help you remove the conditions from your green card. After the conditions are removed, you receive a permanent green card.

    Related: The complete guide to deportation

    How Long Does it Take to Get a Green Card Through Marriage?

    Though processing times vary, it typically takes USCIS between 9 and 36 months to process a green card application. Your immigration attorney can keep track of your application and keep you updated on its status while you wait.

    Marriage Green Cards in the United States

    Common Questions About Green Card Marriage

    Check out these commonly asked questions about marriage-based green cards. If you don’t see the answer to your question here, please call our office at 914-481-8822 to ask – we’ll be happy to give you the answers and legal guidance you need.

    How Long Do You Have to Be Married to Get a Green Card in the U.S.?

    You typically have to be married for at least two years to get a permanent green card. However, you can get a conditional green card before you’ve been married that long. After you remove the conditions from your green card – which you do by showing that your marriage is legitimate (and that you’re still married to the same person) – you may receive a permanent green card that’s good for ten years.

    Related: U visa processing times

    What Happens to Your Green Card if You Divorce?

    If you divorce your spouse before the government issues you a green card, the whole process stops. That’s because you were eligible for a green card based on your marriage to a U.S. citizen or lawful permanent resident – and now that you’re divorced, that relationship no longer exists. You cannot get a green card if you divorce while USCIS is processing your application.

    If you divorce your spouse while you have a conditional green card, you need to prove that your marriage was genuine and that you didn’t commit immigration fraud. There are some special circumstances, such as when you’re a VAWA self-petitioner, that enable you to apply for your own green card if you divorce before your marriage is two years old.

    If you divorce your spouse while you have a permanent green card, which is good for ten years, it probably won’t affect your green card renewal. However, you can contact an immigration attorney if you aren’t sure or need help with your renewal.

    Can You Marry Someone Just to Get a Green Card?

    It’s illegal to marry someone just to get a green card. When the U.S. government finds out that you committed immigration fraud, you’ll be removed from the country. If you’re removed, you won’t be allowed to come back for a set period of time – even if you have a home, a job and other ties to the United States.

    Do You Need to Talk to an Immigration Attorney About Getting a Green Card Through Marriage?

    If you need to talk to an immigration attorney, we may be able to help you. Call our office at 914-481-8822 to schedule a consultation with an experienced, knowledgeable immigration attorney who can answer your questions and give you the legal advice you need.