I-944 Needed for EB1A / EB2 NIW I-485 AOS

I hope you are all doing well in this strange coronavirus time. We are OK, just everything around is a little crazy. Managing my businesses, homeschooling kids and doing the tasks at home is above my head. Please accept my apology, I didn’t publish a blog post about the following topic earlier. I needed to do a proper research first.

There is a significant change regarding Adjustment of Status application (I-485) which is part of EB1A / EB2 NIW case for those of you living in the USA.

The form I-485 was changed and in addition a new form I-944 must be filed with I-485 petition. Even though I-944 isn’t extremely difficult, the form is lengthy (18 pages) and requires a ton of supporting evidence depending on your situation. Let’s see what is this all about.

Official Resources

As always, text in italics is the exact quotation from official government websites, such as USCIS, GovInfo.gov etc. I pulled out the important parts from following resources, if you want to read full-length documents:

• I-944 Declaration of Self-Sufficiency (form and official instructions)
• I-485 Adjustment of Status (AOS)
• final rule (lengthy, 217 pages)
• USCIS Policy Manual, part G (especially chapters: 4. Determination, 14. Heavily Weighted Factors, 15. Scenarios)

Public Charge Grounds

USCIS implemented the Inadmissibility on Public Charge Grounds final rule nationwide … on Feb. 24, 2020.

The final rule requires applicants for adjustment of status who are subject to the public charge ground of inadmissibility … to report certain information related to public benefits.

EB1A / EB2 NIW is NOT Exempt from the Final Rule

Here is a little side note who is subject to this rule and who is exempt. Final rule mentioned one comment regarding EB1A and EB2 NIW cases:

Because Congress did not specifically exempt EB–1A or EB–1B workers, or those with NIWs, from the public charge ground of inadmissibility, DHS may not create an exemption for them in this rule.

Benefits Received before February 24, 2020

USCIS will not consider, and applicants for adjustment of status do not need to report, the application for, certification or approval to receive, or receipt of certain previously excluded non-cash public benefits (such as SNAP, most forms of Medicaid, and public housing) before Feb. 24, 2020.

Similarly, USCIS will not consider as a heavily weighted negative factor receipt of previously included public benefits (such as SSI and TANF) before Feb. 24, 2020, in a public charge inadmissibility determination.

Must Submit Form I-944

Starting with applications for adjustment of status postmarked on or after Feb. 24, 2020, … you must submit this form [I-944] with your Form I-485, Application to Register Permanent Residence or Adjust Status, to demonstrate that you are not inadmissible based on the public charge ground.

Why and How USCIS Evaluate It

Form I-944, Declaration of Self-Sufficiency, is used by an individual to demonstrate that he or she is not inadmissible based on the public charge ground (Immigration and Nationality Act (INA) section 212(a)(4)). An alien is inadmissible … if he or she is more likely than not at any time in the future to receive one or more public benefits, as defined in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

We evaluate whether you are inadmissible by weighing all the positive and negative factors related to your age, health, family status, assets, resources and financial status, education and skills, prospective immigration status and period of stay. More about evaluation later.

General Instructions

You might want to download the most current version of I-944 form to your PC and then type in the information and print it. In case, you discover any mistake later, this is easy to fix then. After printing, don’t forget to sign the form! USCIS will consider a photocopied, faxed, or scanned copy of the original, handwritten signature valid for filing purposes.

You should submit legible photocopies of documents requested, unless the Instructions specifically state that you must submit an original document.

If you submit a document with information in a foreign language, you must also submit a full English translation. The translator must sign a certification that the English language translation is complete and accurate, and that he or she is competent to translate from the foreign language into English. The certification must include the translator’s signature. DHS recommends the certification contain the translator’s printed name, the signature date, and the translator’s contact information.

I-944 Specific Instructions

Now, let’s see what is required in this form I-944.

Part 1 asks for a classic information about you which you already filed so many times: your name, address, A-number (find it on your I-140 Approval Notice or if you do not have an A-Number or if you cannot remember it, leave this space blank).

Next is USCIS online account number if you have any (not the same as A-number), date and place of birth, country of citizenship or nationality.

This part should be straightforward, if not check the official instructions for more details.

Household Members

Part 2 requires to file information about you again and members of your household as well. The term child includes stepchildren and adopted children.

The following individuals are part of your household:

• You
• Your spouse, if physically residing with you
• Your children (under the age of 21 and unmarried) physically residing with you
• Your other children (under the age of 21 and unmarried) not physically residing with you for whom you provide or are required to provide at least 50 percent of financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by you
• Any other individuals (including a spouse not physically residing with you) to whom you provide, or are required to provide, at least 50 percent of the individual’s financial support, or who are listed as a dependent on your federal income tax return
• Any individual who provides to you at least 50 percent of your financial support, or who lists you as a dependent on his or her federal income tax return.

In addition to listing each household member’s name (including yourself), also provide each individual’s date of birth, relationship to you (for yourself, you must list “self”), A-Number (if any), and whether the individual is filing an immigration benefit application with you.

If the individual is not filing an immigration benefit application with you, select “No” when asked “Is this individual filing an application for an immigration benefit with you or has this individual already filed an application?”

You will have at least one individual listed because you must include yourself.

If not already provided with your Form I-485, provide evidence of your relationship to each individual (such as a birth certificate or marriage certificate). If you do not have evidence of a relationship to one or more members of the household, please submit a signed statement from such household member(s).

Household Assets and Financial Status

In Part 3, you will be providing information about your assets, resources, and financial status, as well as the assets, resources, and financial status of all other household members.

Your assets, resources, and financial status are factors USCIS considers when deciding whether you are inadmissible based on the public charge ground.

Household Income

In Item Number 1, list your and your household members’ annual gross (total) income from the most recent federal income tax returns, if any.

We will consider your household annual gross income, which includes your annual gross income, and any additional annual gross income from your household members listed in Part 2.

Your household’s annual gross income should be at least 125 percent (100 percent if you are on active duty, other than in training, in the U.S. Armed Forces) of the Federal Poverty Guidelines for the most recent year as set by the U.S. Department of Health and Human Services (HHS) for the household size you listed in Part 2. See https://aspe.hhs.gov/poverty-guidelines.

If you are below this limit, read more details in the official instructions.

Evidence of income

You must provide an IRS transcript(s) of your Federal income tax returns for the most recent tax year and the IRS transcript(s) of the household members whose income you are including.

For information on obtaining federal income tax transcripts without a fee, see https://www.irs.gov/individuals/get-transcript.

I have just tested this service and it is pretty easy and fast. It took me 10 minutes to get this transcript online. They will ask a few questions (name, address, SSN etc.) to verify your identity. Then you must create your account and there you can obtain various records including this tax return transcript.

You may also use IRS Form 4506-T to request tax transcripts from the IRS.

You are not required to have the IRS certify the transcript or photocopy unless we specifically instruct you to do so; a plain transcript is acceptable.

If you are filing Form I-944 between January 1 and April 15 of any year, and you and/or your household members have not yet filed the current year’s federal income tax return, submit IRS transcripts for the most recent tax year. At the time of interview on your application, an officer may request the tax return transcripts for the current tax year.

Submit any tax transcripts for any income taxes that you or your household members filed with any foreign government if you or your household members were residing outside of the United States during any time within the most recent tax year and you were not required to file a federal individual income tax return with the United States government.

If you were not required to file a federal income tax return in any of the prior three tax years, you may provide Form W-2 or a Social Security Statement providing a history of total annual income (gross income). If you provide a W-2 or Social Security Statement provide the listed wages, tips, or other compensation.

Additional Income

Item Number 6. If you or your household members received additional income on a continuing weekly, monthly or annual basis for the most recent tax year (for example, child support, unemployment benefits) and the income was NOT included in your or your household member’s tax return transcript, provide the amount of additional income and all information requested.

For information on non-taxable income see https://www.irs.gov/pub/irs-pdf/p525.pdf.

Also, provide evidence of the additional income from any source in the United States or outside the United States in U.S. dollars.

Do not list income from any public benefits, as defined in 8 CFR 212.21(b) that you or your household members received as it is not counted towards income.

Do not list any income listed in Item Number 1., Household Income.

Household’s Assets and Resources

Item Number 9. List only the assets that can be converted into cash within 12 months.

Provide the value of any asset held in the United States or outside the United States, in U.S. dollars.

Home

If you or a household member owns a home, you may include the net value of your or the household member’s home as an asset. The net value of the home is the appraised value of the home, minus the sum of all loans secured by a mortgage, trust deed, or other lien on the home.

If you wish to include the net value of your or your household member’s home, then you must include documentation demonstrating that you or the household member owns it, a recent appraisal by a licensed appraiser, and evidence of the amount of all loans secured by a mortgage, trust deed, or other lien on the home.

Automobile

You may not include the net value of an automobile unless you or your household member shows that you or your household member have/has more than one automobile, and at least one automobile is not included as an asset.

Evidence of Assets

If you list assets or resources, submit evidence of the value of your or your household member(s)’s assets. You must include the name of the asset holder, a description of the asset, proof of ownership, and the basis for the owner’s claim of its net cash value. Evidence of assets and resources include:

• Checking and savings account statements – you must provide account statements from the bank(s) covering at least 12 months prior to filing the application
• Annuities
• Stocks and bonds (cash value) / certificates of deposit
• Retirement accounts and educational accounts
• Net cash value of real estate holdings
• Any other evidence of substantial assets that can be easily converted into cash.

You can also provide any documentation from the household members’ assets. For additional information, see www.uscis.gov/greencard/public-charge.

Liabilities / Debts

Item Number 10. Provide a list of all your liabilities or debts. Examples of liabilities and debts include mortgages, car loans, unpaid child or spousal support, unpaid taxes, and credit card debt. Provide documentation for each liability or debt.

Credit Report and Score

Item Number 11 and 12. USCIS will review your U.S. credit report and the credit score submitted with your declaration, if available, to review your financial status. If it is available, identify the latest credit score number.

Provide a U.S. credit report generated within the last 12 months prior to the date of filing.

You can obtain a free credit report once a year under the Fair Credit Reporting Act from each one of the three credit reporting agencies. You are only required to provide one credit report from any of the three nationwide credit reporting agencies, Equifax, Experian, and TransUnion. See https://www.usa.gov/credit-reports for more information.

Note aside – the above resource will allow you to get your free credit report at AnnualCreditReport.com. However, this credit report does NOT include your credit score number. You can purchase the complete credit report including credit score from Equifax, Experian, and TransUnion. It is not clear from the official instructions if the credit score document must be only from any of these three agencies or you could use free resources like Creditkarma.com or your credit card company resources.

If there are any errors in the credit report, you should provide evidence from the credit reporting agency that demonstrates that you reported the error and that the error is under investigation or has been resolved.

If you have any negative history in your credit report, you may provide an explanation in the designated area of this form. Negative credit history may include delinquent accounts, debt collections, charge-offs (delinquent accounts deemed unlikely to be collected), repossession, foreclosure, judgments, tax liens, or bankruptcy on your credit report.

If you do not have a credit report or credit score, provide documentation that demonstrates that you do not have a credit report or score with a credit bureau. You may provide evidence of continued payment of bills if there is no credit report or credit score.

Bankruptcy

Item Number 14. Indicate whether or not you have ever filed for bankruptcy, either in the United States or in a foreign country. If you answered “Yes,” list all the times you filed for bankruptcy, including the type (if filed in the United States), place of filing and the date of the bankruptcy. Provide evidence of the resolution of each bankruptcy, if available.

Health Insurance

Item Number 15. If you currently have health insurance, provide the following:

• For each policy, a copy of each policy page showing the terms and type of coverage and individuals covered; or
• Letter on the company letter head or other evidence from your health insurance company stating you are currently enrolled in health insurance and providing the terms and type of coverage; or
• The latest Form 1095-B, Health Coverage; Form 1095-C, Employer-Provided Health Insurance Offer and Coverage (if available) with evidence of renewal of coverage for the current year.

A health insurance card is insufficient without effective and expiration dates.

Item A. Indicate whether or not you have received a Premium Tax Credit or Advanced Premium Tax Credit for your health insurance. Provide a transcript copy of the IRS Form 8963 Report of Health Insurance Provider Information, Form 8962 Premium Tax Credit (PTC), and a copy of Form 1095A, Health Insurance Marketplace Statement.

Item B. Provide the annual amount of deductible or annual premium of your health insurance. Provide documentation of the amount of deductible or premium.

Item C. Indicate the date when your insurance terminates or when it must be renewed and provide documentation.

No Health Insurance?

Item D. If you currently have no health insurance coverage proceed to Item D – indicate whether you have enrolled or soon will enroll in health insurance but your insurance coverage has not started yet.

If you answer “Yes,” provide a letter or other evidence from the insurance company showing that you have enrolled in or have a future enrollment date for a health insurance plan. The letter or other evidence must include the terms, the type of coverage, that you are the individual covered, and the date when the coverage begins.

If you answered “No,” you may provide information on how you plan to pay for reasonably anticipated medical costs.

If you have federally funded Medicaid for health insurance, please include the benefit in Item Numbers 15. and 16.

USCIS reviews Form I-693, Report of Medical Examination and Vaccination Record, or Form DS-2053, Medical Examination for Immigrant or Refugee Applicant, to determine whether you have a medical condition that will affect your ability to work, attend school, or care for yourself.

You may provide any documentation that may outweigh any negative factors related to a medical condition, including but not limited to, information provided by a civil surgeon or a panel physician on a medical examination.

You may also provide an attestation from your treating physician regarding the prognosis of any medical condition and whether this medical condition impacts your ability to work or go to school.

You may also provide evidence of sufficient assets and resources to pay the costs of any reasonably anticipated medical treatment.

Public Benefits

Please provide the information requested about your (the alien’s) application or certification for, or receipt of, public benefits. Please provide all requested information about each public benefit regardless of amount or duration, as USCIS will calculate the duration of the public benefit.

If you received public benefits intermittently throughout the year, provide each instance separately. For example, if you received SNAP from January to February and June to December, provide the information as two separate instances.

Receipt means when a benefit-granting agency provides or has provided a public benefit to you whether in the form of cash, voucher, services, or insurance coverage. USCIS will only consider the amount received by or attributable to the alien.

In the space provided, indicate whether you have ever received, currently receive, or are currently certified to receive any of the following public benefits. (You must respond even if you fall within one of categories of individuals for whom receipt of public benefits will not be considered – see the table below for evidence that must be provided to document that you qualify for the exclusion). Please select all that apply.

• Any Federal, State, local, or tribal cash assistance for income maintenance
• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF)
• Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which may exist under other names)
• Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
• Section 8 Housing Assistance under the Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
• Public Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq.
• Federally funded Medicaid

If you have not received any public benefits, please select that option.

If you are not currently certified to receive any public benefits, please select that option.

Benefits Received before October 15, 2019

NOTE: For benefits received before October 15, 2019, you only need to report receipt of SSI, cash, TANF, General Assistance, and benefits received for long-term institutionalization.

You do not need to report receipt of SNAP, Medicaid (other than Medicaid benefits used to fund long-term institutionalization), Section 8 Housing Assistance under the Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation), and Public Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq. if received before October 15, 2019. These benefits were excluded from consideration for public charge inadmissibility purposes under the guidance in place before October 15, 2019, and therefore will not be considered if received only before October 15, 2019.

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Indicate whether you have ever applied for a public benefit listed above but your application was denied or rejected; provide documentation of the denial or rejection.

As part of the public charge inadmissibility determination under INA section 212(a)(4), we will generally consider any past, current receipt, or certification of future receipt of public benefits.

NOTE: To the extent that States give the same name to their Federal Medicaid program and the state-only funded health insurance program, aliens will not be required to report the receipt of the state-only funded health insurance.

Exclusions

The following is a list of exclusions from the public benefit receipt consideration listed above.

• U.S. Armed Forces Service Members
• Federally-funded Medicaid
• Children Acquiring U.S. Citizenship
• Public Benefits While in an Immigration Category Exempt from Public Charge

If you belong to one of the following categories, check more detailed description of each group and submit the evidence described in official instructions.

Evidence of Public Benefits / Exclusions

If you have applied for, are currently receiving, previously received, or are certified to receive in the future any of the public benefits listed above, provide evidence in the form of a letter, notice, certification, or other agency document that contains the following:

• Your name
• Name and contact information for the public benefit-granting agency
• Type of public benefit
• Date you were authorized to start receiving the benefit or date your coverage starts
• Date benefit or coverage ended or expires (mm/dd/yyyy) (if applicable)

If you have applied for, are currently receiving, previously received or are certified to receive public benefits but an exclusion applies, please indicate whether an exclusion applies to you in Item Number 19. and provide the evidence listed in the chart above [in official instructions] to demonstrate why the benefit should not be considered.

Disenrollment from Public Benefits. If you answer “Yes” to Item Number 17., please provide evidence of your disenrollment or your request to disenroll if the public benefit granting agency has not processed your request.

Item Number 25. Withdrawing a Public Benefit Application. If you had applied for a public benefit but withdrew your application, provide evidence demonstrating that the public benefit granting agency received your request to withdraw the application.

You may also submit evidence from a federal, state, local, or tribal agency administering a public benefit that shows that you do not qualify or would not qualify for such public benefit by virtue of, for instance, your annual gross household income or your prospective immigration status.

Item Number 26. Applications for or Receipt of Immigration Fee Waivers. Indicate whether or not you have ever applied for or received a fee waiver when applying for an immigration benefit. If you answered “Yes,” list when you received the fee waiver, the type of immigration benefit for which you applied, and the receipt number for the application or petition for which the fee was waived. Explain the circumstances that caused you to apply for a fee waiver and if those circumstances have changed in Part 9. Additional Information.

Education and Skills

This Part 4 is short and easy if you already have an approved Form I-140. Provide the receipt number and skip to Part 5.

If you are filing I-485 concurrently with I-140 (not having I-140 approved yet), fill all the details regarding your education and skills and provide evidence. Check official instructions if you need more detailed information.

Declarant’s Statement

In Part 5, select the appropriate box to indicate whether you read this declaration yourself or whether you had an interpreter assist you. If someone assisted you in completing the declaration, select the box indicating that you used a preparer.

Further, you must sign and date your declaration and provide your daytime telephone number, mobile telephone number (if any), and email address (if any).

Interpreter / Preparer

Part 6 and / or 7 must be filled out if you used interpreter and / or preparer. Check official instructions if needed.

Signature at Interview

Part 8 – Do not complete this part. The USCIS Officer will ask you to complete this part at your interview.

Submit Form I-944 at the same time you submit Form I-485.

Make sure you download the most current version of the form I-944. Here are official instructions.

This form I-944 could be quite lengthy, especially if most of the parts apply to you and you will submit all the evidence. Expect couple hours of work depending on your situation.

How USCIS Determine Public Charge Inadmissibility

A public charge determination is based on an applicant’s likelihood at any time in the future to become a public charge.

If the applicant is more likely than not to receive one or more public benefits in the future, and such receipt is likely to exceed 12 months in the aggregate within a 36-month period, then the applicant is inadmissible on the public charge ground.

Evaluating whether an applicant is inadmissible based on the totality of the applicant’s circumstances means evaluating all of the information… weighing all the positive and negative factors…

Any factor that decreases the applicant’s future likelihood of receiving one or more public benefits above the 12 months in the aggregate in a 36-month period threshold is positive.

Any factor that increases the applicant’s future likelihood of receiving one or more public benefits above the 12 aggregate months in a 36-month period threshold is negative.

Beyond determining whether the factors are positive or negative, the officer must also weigh all factors individually and cumulatively. A specific factor may weigh more heavily in one applicant’s case than another, depending on what other factors exist in each case. Read more about Heavily Weighted Factors in USCIS Policy Manual.

I don’t want to further bother you with all these rules because most of EB1A and EB2 NIW applicants should fall into “admissible group”. Unless they receive public benefits at the threshold, have more members in their household than they could possibly feed, have no current employment or recent employment history, have a huge debt, have a significant medical condition and a lack of private health insurance etc. If that might be your case, read about the following scenario and also read more in the USCIS Policy Manual, part G how to improve your situation.

Example Case

Chapter 15 of USCIS Policy Manual shows example scenarios, including explanation of positive and negative factors and how USCIS made a decisision. Let’s check the only case (Scenario 4) from employment-based category EB3 (lower preference than EB1A and EB2 NIW).

The applicant, 33, is applying for adjustment of status in the 3rd preference employment-based unskilled worker category (EW8) as a farmworker hired to pick crops with an annual salary of $24,320.

The applicant’s household includes the applicant’s spouse and their three children. The 125 percent FPG threshold for a household of five in 2020 is $38,350 annually.

The applicant has $2,000 in assets and resources, and the entire family of the applicant lives on the applicant’s employer’s farm. The employer provides housing and food for the employees, incident to the employment and as part of the remuneration.

The applicant is not proficient in English, has health insurance through the employer, and the applicant’s Form I-693 shows no Class A or Class B medical conditions.

The applicant has worked in the United States on and off over the last 10 years as an H-2A nonimmigrant agricultural worker with the same employer. In addition, the evidence shows that when the applicant was not working in the United States, the alien was working abroad in similar positions. Documentation also indicates a steady increase in salary over the applicant’s career.

The file does not contain evidence of a credit score or credit history report. The applicant has provided a letter from a friend, indicating that the applicant is currently paying back a loan given by the friend so that the applicant could buy a car. The letter also states that the applicant has been making regular payments to the friend and that the friend anticipates that the applicant will pay the loan off in 2 years.

The applicant is seeking LPR status in the United States. The applicant did not provide evidence of ineligibility for public benefits due to the immigration status or income. The applicant presents evidence of the equivalent of a high school degree from the applicant’s country of origin.

Negative Factors

There are a number of negative factors in the applicant’s case. The applicant’s income is insufficient to support the entire family, being well short of the 125 percent of the FPG standard for the applicant’s household size.

The applicant lacks sufficient assets to compensate for the shortfall in income.

In addition, these assets are reduced by liabilities (the loan from the applicant’s friend).

The applicant is not proficient in English. The applicant is seeking to become an LPR and has not demonstrated ineligibility for public benefits on account of the immigration status or income.

Positive factors

There are also positive factors in the applicant’s case. The applicant is within the working age (between 18 and 61) and has demonstrated a continuous employment history and good prospect of future employment, as well as a steady increase in salary over time.

He or she has a high school diploma and has demonstrated that he or she possesses employable skills.

The applicant has provided evidence of financial responsibility (the letter from the friend who provided the loan).

The applicant is in good health and has no Class A or Class B medical conditions. The applicant also has private health insurance, which is a heavily weighted positive factor in the totality of the circumstances.

Result

In the totality of the applicant’s circumstances, the positive factors outweigh the negative factors and therefore, the applicant is not likely at any time to become a public charge. 

There is a lot more in USCIS Policy Manual if you want to dig deeper.

I hope this lengthy blog post helps you to understand what is the new Public Charge rule, how to provide USCIS officers required documentation and how to stay or become admissible on the public charge ground.

DIY Kit Update

I have just started to implement all these changes to all of our DIY kits (EB1A and EB2 NIW). USCIS changed also Form I-485 and added Public Charge part there as well. I will download the most current versions of all forms to make DIY kit update complete. Once I finish, I announce this here on the blog. All customers get this update for free if they request it (after sending a proof of purchase).