by Andrea Lee

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The new rule regarding the public charge ground of inadmissibility went into effect on December 23, 2022. As a result, Form I-485, Application to Register Permanent Residence or Adjust Status, was updated with additional questions that have proven confusing for some. This article will hopefully clarify some of those doubts.

Some background on the public charge rule. Though the final rule was recently published, this ground of inadmissibility has been in effect since 1999. As an adjustment of status applicant, one cannot be or likely to become a public charge. What this final rule does is more clearly define “public charge”:

“Someone who is primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.”

8 CFR Section 212.21(a).

“Cash assistance” includes only the following programs:

• Supplemental Security Income (SSI);
• Temporary Assistance for Needy Families (TANF); and,
• State, Tribal, territorial, or local cash benefit programs for income maintenance.

The additional questions on Form I-485 were added to try to make this issue clearer for officers adjudicating a case.

The adjustment form's question 61 in Part 8 asks whether the applicant is subject to the public charge grounds of inadmissibility. There are certain applicants who will not be subject to this ground of inadmissibility. A full list of exemptions can be found in 8 CFR section 212.23(a). The most common individuals who are exempt include:

• Asylees and refugees;
• Cubans applying under the Cuban Adjustment Act;
• VAWA recipients;
• Special Immigrant Juveniles; and,
• T and U visa recipients.

Question 62 in Part 8 of the Form I-485 asks for the applicant's household size. The applicant must include him or herself then add any of the following individuals they reside with:

• Spouse;
• Parents;
• Unmarried siblings under the age of 21; and,
• Unmarried children.

The applicant also needs to add any dependents listed on their tax returns.

Question 63 asks about the applicant's annual household income. The applicant should include any income (taxable and non-taxable) from the applicant and household members counted in question 62 above.

Question 64 asks for the applicant's total value of assets. Though the I-485 form instructions don't list specific examples, we can gain some insight from the instructions for Form I-864, used to show the petitioner's ability to sponsor the foreign national. In those instructions, “assets” include savings accounts, stocks, bonds, real estate, or other assets that are readily convertible to cash within one year. Other assets that should be considered are cash in a checking account, automobiles, and other items that are valuable.

Question 65 asks for the applicant's household liabilities. Again, there is no specific definition but one should consider large and regular liabilities such as a mortgage, car loans, school tuition, or child support.

Question 66 asks for the highest level of education and lists standard U.S. education milestones. If the applicant completed school outside of the U.S., they should select the option closest to the U.S. education equivalent.

Question 67 asks for certifications and licenses. Applicants should include any formal certificates received, such as workforce skills training, licenses for specific occupations, foreign language skills, etc.

​All in all, the “new” public charge rule and the additions to Form I-485 were put in place to help officers determine whether an applicant is or will likely become primarily dependent on public cash assistance to maintain their income in the United States. There is a more holistic approach in this determination, looking at education and skills, total household income and liabilities, and other factors that could influence this decision. Hopefully this will help clear the air for those applying for the adjustment of status.