Public Charge Rule Change Update

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Fox Rothschild LLPAs of February 24, 2020, all applications for Adjustment of Status will be subject to the enhanced Public Charge Rule after a rule by the U.S. Supreme Court on January 27, 2020.  This rule, originally scheduled to take effect on October 15, 2019, was enjoined due to multiple federal court injunctions, which have now been lifted in all states, except Illinois.

The Inadmissibility on Public Charge Grounds Final Rule implemented by the Trump administration expands greatly on how the government proposes to enforce a determination that a foreign national who is seeking a U.S. immigration benefit is or is likely to become a “Public Charge”, which means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.  For additional information, please see our previous post on this topic.

In response to the ruling, on February 5, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance, effective February 24, 2020.  Among other things, the guidance defines the term “public charge,” lists the categories of exempt applicants, identifies the types of public benefits considered in inadmissibility determinations, and more.  Additionally, USCIS published revised forms consistent with the final rule, which must be used for applications file on and after Feb. 24, 2020 (except in Illinois, where the rule remains enjoined by a federal court):  With regard to applicants from Illinois, USCIS released a webpage providing information on how it plans to adjudicate applications for adjustment of status, extension of stay, and change of status for applicants and petitioners in Illinois (including information on the effects of moving in and out of the state).

USCIS will not consider 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 February 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 February 24, 2020.  (Note that Refugees, Asylees, Survivors of Trafficking, Survivors of Domestic Violence (T or U Visas), VAWA self-petitioners, or Special Immigrant juveniles are NOT subject to the new rule when applying for status or permanent residency.)

Policy Highlights
  • Defines the term “public charge” for purposes of inadmissibility determinations under INA 212(a)(4).
  • Lists the categories of applicants that are exempt from, or may obtain a waiver of, the public charge inadmissibility ground.
  • Identifies the types of public benefits that are considered in public charge inadmissibility determinations, as well as in applications and petitions for extension of stay and change of status.
  • Identifies the factors that USCIS considers and explains that officers review the totality of the applicant’s circumstances when determining public charge inadmissibility.
  • Explains that a sufficient Affidavit of Support Under Section 213A of the INA, when required, is but one factor in the totality of the circumstances, and does not, by itself, mean an alien is not inadmissible based on the public charge ground.
  • Explains the public charge bond process for adjustment of status applications filed with USCIS.
  • Explains the public benefits condition that applies to nonimmigrants seeking extension of stay and change of status.
  • Explains that the public charge ground of inadmissibility does not apply in naturalization proceedings except that, for the purposes of determining whether a naturalization applicant was lawfully admitted for permanent residence under INA 318, the officer’s review includes whether the alien was inadmissible based on the public charge ground.

The rule will require immigrants to attach a new form, I-944, Declaration of Self-Sufficiency, when applying for a green card in addition to the many other forms already required as part of an adjustment application.  The new eighteen (18) page I-944 form requests a wide array of information including Personal & Household Assets, Resources, and Financial Status, Credit Score Report, Bad Credit Explanation, bankruptcy history, Health Insurance, Premium Tax Credits Obamacare, and Public Benefits Used by Individual.  There is no filing fee associated with the form, however, there may be costs to applicants, including obtaining a credit history from one of the three vendors.  USCIS has advised that it will take  approximately 4.5 hours to fill out the form, although it remains to be seen how long will actually be required.

[View source.]

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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