DHS May Resume Public Charge Rule, Federal Appeals Court Rules

Jackson Lewis P.C.

The Department of Homeland Security (DHS) may resume implementation of the new Public Charge Rule, the U.S. Court of Appeals for the Second Circuit has ruled.

The factors that are considered under the new Public Charge Rule include the applicant’s use of public benefits, employment status and history of employment in the U.S., among others.

Since 2018, the Administration has been trying to enforce a new Public Charge Rule that expands the public benefits that would render an alien a “public charge,” thereby limiting the ability of certain immigrants and non-immigrants to obtain visas. When the 447-page Public Charge Rule was published, it immediately became controversial as a “wealth test.” Cities, states, and advocacy groups also opposed the new rule because it would result in immigrants forgoing benefits such as basic health benefits for themselves and even for their U.S. citizen children due to fear of potential adverse immigration consequences.

States and advocacy groups filed suits and injunctions preventing the U.S. Citizenship and Immigration Service (USCIS) from proceeding with implementation were issued. The U.S. Supreme Court lifted one injunction in January 2020 and the new rule was set to become effective on February 24, 2020. However, due to the national emergency caused by the COVID-19 pandemic, a new injunction was issued by the U.S. District Court for the Southern District of New York on July 29, 2020. That injunction was completely overturned by the Second Circuit on September 11, 2020.

USCIS announced on September 22, 2020, that it would apply the new rule to all relevant applications or petitions postmarked or submitted electronically on or after February 24, 2020, including pending applications and petitions. It would do the following:

  • Applicants who filed Form I-485 Applications to Register Permanent Residence or Adjust Status after February 24, 2020 (but before the announcement) may receive Requests for Evidence requiring them to submit a Form I-944, Declaration of Self-Sufficiency, in accordance with the new rule.
  • Any applicants who submit Forms I-485 between September 22 and October 13, 2020, that do not include the evidence and forms required under the new rule will be asked to submit the missing forms and evidence.
  • After October 13, 2020, Forms I-485 that do not include the evidence and forms required under the new rule will be rejected.
  • The Form I-944 (which had been temporarily removed from the USCIS website) has been republished.
  • USCIS also announced that it would ask for any missing evidence for the following forms:
    • I-129, Petition for Nonimmigrant Workers;
    • I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Workers;
    • I-539, Application to Extend/Change Nonimmigrant Status; and
    • I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status.

USCIS announced it will not re-adjudicate any applications or petitions that were already approved following the July 29, 2020, injunction.

The Department of State (DOS) issued its last guidance regarding the application of the new rule in August 2020. At that time, DOS stated that the Form DS-5540, Public Charge Questionnaire, was not required due to the then-current injunction. DOS likely will provide an update.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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