Chapter 8 - Family Status
Alert
On July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY) in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, et al. enjoined the Department of Homeland Security from enforcing, applying, implementing, or treating as effective the Inadmissibility on Public Charge Grounds Final Rule (84 FR 41292, Aug. 14, 2019, final rule; as amended by 84 FR 52357, Oct. 2, 2019, final rule correction) for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.
As long as the July 29, 2020, SDNY injunction is in effect, USCIS will apply the 1999 public charge guidance that was in place before the Public Charge Rule was implemented on Feb. 24, 2020 to the adjudication of any application for adjustment of status on or after July 29, 2020. In addition, USCIS will adjudicate any application or petition for extension of nonimmigrant stay or change of nonimmigrant status on or after July 29, 2020, consistent with regulations in place before the Public Charge Rule was implemented; in other words, we will not apply the public benefit condition. For more information, see our page on the injunction.
Officers must consider an applicant’s family status when determining whether an alien is likely to become a public charge at any time in the future.[1]
USCIS considers whether the alien has a household to support, or whether the alien is being supported by others in the alien’s household, and whether the alien’s household size makes the alien more or less likely to become a public charge. Family status must be reviewed in connection with, among other things, the alien’s assets and resources.
Having a large number of household members may be a negative factor, because a higher financial responsibility and support obligation is needed to avoid relying on public benefits.[2] However, household members may have their own income and assets to either support themselves or contribute to the household. An applicant should at least be able to support him or herself and the number of dependents in the applicant’s household at 125 percent of the Federal Poverty Guidelines (FPG).
A. Standard
USCIS considers an alien’s household size in relation to the alien’s assets and resources to determine whether the alien is more likely than not to become a public charge in the future. For aliens who are children,[3] USCIS reviews the assets and resources of household members in the parents’ household.
If the applicant is able to support him or herself and the alien’s household members at 125 percent of the FPG for the alien’s household size, then this is a positive factor. If the applicant is not able to support him or herself and the household members at 125 percent of the FPG for the alien’s household size, then this is a negative factor. USCIS considers the applicant’s assets and resources, to determine whether the applicant’s family status is a positive or negative factor.[4]
1. Household Members for Applicant over Age 21 or Under 21 and Married
For applicants who are over the age of 21 or under the age of 21 and married, USCIS considers the following people as part of the household:
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The alien;
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The alien's spouse, if physically residing with the alien;
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The alien's children, unmarried and under the age of 21,[5] physically residing with the alien;
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The alien's other children, unmarried and under the age of 21,[6] not physically residing with the alien for whom the alien provides or is required to provide at least 50 percent of the children’s 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 the alien;
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Any other person(s) (including a spouse not physically residing with the alien) to whom the alien provides, or is required to provide, at least 50 percent of the person’s financial support or who are listed as dependents on the alien's federal income tax return; and
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Any person who provides to the alien at least 50 percent of the alien’s financial support, or who lists the alien as a dependent on his or her federal income tax return.
A person who provides to the alien at least 50 percent of the alien’s financial support may include another relative such as a grandparent, parent, or sibling living with the alien or someone not living with the alien who provides the alien with a monthly or yearly income, or supports the alien through payment of mortgage or rent, utility bills, grocery bills, or other needs. An alien must properly document and establish that such person is providing support for the alien for the person to be considered part of the household.
2. Household for Applicants under 21 and Unmarried
If the alien is a child as defined in INA 101(b)(1), the alien’s household includes the following:
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The alien;
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The alien's children[7] physically residing with the alien;
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The alien’s other children[8] not physically residing with the alien for whom the alien provides or is required to provide at least 50 percent of the children’s 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 the alien;
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The alien's parents, legal guardians, or any other person providing or required to provide at least 50 percent of the alien’s 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 to the alien;
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The parents’ or legal guardians’ other children[9] physically residing with the alien;
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The alien’s parents’ or legal guardians’ other children,[10] not physically residing with the alien for whom the parent or legal guardian provides or is required to provide at least 50 percent of the other children’s 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 the parents or legal guardians; and
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Any other person(s)[11] to whom the alien’s parents or legal guardians provide, or are required to provide at least 50 percent of the person’s financial support or who is listed as a dependent on the parent's or legal guardian's federal income tax return.
B. Summary of Family Status
The following table provides a list of positive and negative factors relevant to family status.
|
Positive Factors |
Negative Factors |
|---|---|
| If the alien is able to support him or herself and his or her household members at or above 125 percent of the FPG (100 percent for active duty military, other than active duty for training, in the U.S. armed forces) for the alien’s household size. | If the alien is not able to support him or herself and his or her household members at or above 125 percent of the FPG (100 percent for active duty military, other than active duty for training, in the U.S. armed forces) for the alien’s household size. |
C. Evidence
Evidence of family status includes information regarding the household members, which may include birth certificates, marriage certificates, and affidavits to establish relationships.
Footnotes
1. [^] See INA 212(a)(4).
2. [^] See DHS’s analysis of SIPP data in Tables 16 and 17 in 83 FR 51114, 51185-86 (Oct. 10, 2018) (proposed rule).
3. [^] As defined by INA 101(b)(1).
4. [^] For more information, see Chapter 9, Assets, Resources, and Financial Status [8 USCIS-PM G.9].
5. [^] As defined in INA 101(b)(1).
6. [^] As defined in INA 101(b)(1).
7. [^] As defined in INA 101(b)(1).
8. [^] As defined in INA 101(b)(1).
9. [^] As defined in INA 101(b)(1).
10. [^] As defined in INA 101(b)(1).
11. [^] Such as a child or parent.