The decision to file for bankruptcy carries many long-lasting and important consequences for a person’s life. For a foreign national who is contemplating filing for bankruptcy, there may be additional bankruptcy consequences if the foreign national has filed, or is preparing to file, the I-485 Application to adjust his/her immigration status to that of a lawful permanent resident (i.e. to receive the green card).

The reason why filing bankruptcy may affect a foreign national’s green card processing is because there is a provision of immigration law that states an applicant may not be approved for a green card if the applicant (at the time of submitting the application) is likely to become a “public charge” at any time in the future.  In immigration law, the term “public charge” means a person who is likely to be dependent on the U.S. government for subsistence, such as by utilizing public cash assistance in lieu of gainful employment.

Now, the mere filing of a bankruptcy petition during the I-485 Application process does not automatically qualify the foreign national as a public charge (which therefore may disqualify them for a green card).  The U.S. government takes into consideration many different factors when deciding if someone will be a public charge, including age, health, family status (such as how many dependents the person has who rely on him/her for subsistence), education, employment skill sets, record of employment, etc.  During this evaluation process, no one factor is determinative and so if the person has a large family, but possesses a medical degree and previously worked as a surgeon, it is unlikely that the U.S. government would deny this person’s I-485 Application on the ground of public charge even if this person also filed bankruptcy (because the person is likely to have significant income in the future as a surgeon).

However, if the applicant has already taken advantage of certain government benefits, the I-485 Application may be denied on public charge grounds.  Specifically, if the applicant has received state or federal cash assistance, long-term care at the U.S. government’s expense, supplemental security income, or Temporary Assistance for Needy Families (TANF cash), then it is more likely that the applicant will be denied because of public charge reasons.

It is important to point out that the receipt of many types of government benefits does not lead to a determination that a person is a public charge.  Also, there are even certain groups of foreign nationals who are exempt from the public charge consideration altogether. These groups include refugees, asylees, foreign nationals who are applying for their green card under the Cuban Adjustment Act, foreign nationals who are applying for their green card under the Nicaraguan and Central American Relief Act, and others.

However, it is equally important to point out that foreign nationals who are applying for their green cards due to a family-based immigration petition, and foreign nationals who will work for a company in which a relative holds a 5% ownership interest, must file an I-864 Affidavit of Support with their I-485 Application.  The I-864 shows the U.S. government that you have the financial means to live in the U.S. and will not become a public charge.  If you have filed bankruptcy, this may be difficult to show, but you can have a family member file the I-864 as your sponsor provided the family member has enough income to support you.

As you can see, it is very important to speak to an attorney about how bankruptcy may affect your I-485 Application.  Contact our office today to speak to a knowledgeable immigration and bankruptcy attorney who can explain these issues to you and assist you with your case.