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Featured Issue: Public Charge Changes at USCIS, DOJ, and DOS
AILA Doc. No. 19050634 | Dated September 22, 2020
Resources related to the Trump administration’s public charge changes. On September 22, 2020, USCIS issued guidance on how it will implement the DHS Public Charge Rule given the Second Circuit stay.
Current State of Play
On September 11, 2020, the Second Circuit Court of Appeals stayed a district court's nationwide injunction on the DHS public charge rule. This means that USCIS is now free to require the Form I-944 in all jurisdictions. On September 22, 2020, USCIS issued guidance on how it will implement the DHS Public Charge Rule given the Second Circuit stay. Notably, USCIS will apply the DHS Public Charge Rule to all petitions and applications postmarked on or after February 24, 2020. For more information, please see AILA's practice alert.
On August 7, 2020, DOS provided an update in which it stated that it is complying with the nationwide injunction and is in the process of updating its guidance to consular officers on how to proceed. In the interim, visa applications that appear to be ineligible under INA 212(a)(4) will be refused for administrative processing to allow for consultation with the DOS, including legal review to ensure compliance with applicable court orders. Visa applicants are not required to complete nor should they present the DS-5540, Public Charge Questionnaire.
On July 31, 2020, USCIS posted guidance, stating that "As long as the July 29,2020, SDNY decision is in effect, USCIS will apply the 1999 public charge guidancethat was in place before the Public Charge Rule was implemented on Feb.24,2020 to the adjudication ofany application for adjustment of status on or aer July 29,2020. In addition, USCIS will adjudicate anyapplication or petition for extension of nonimmigrant stay or change of nonimmigrant status on or aerJuly 29,2020, consistent with regulations in place before the Public Charge Rule was implemented; inother words, we will not apply the public benefit condition."
On August 7, 2020, DOS provided an update in which it stated that it is complying with the nationwide injunction and is in the process of updating its guidance to consular officers on how to proceed. In the interim, visa applications that appear to be ineligible under INA 212(a)(4) will be refused for administrative processing to allow for consultation with the DOS, including legal review to ensure compliance with applicable court orders. Visa applicants are not required to complete nor should they present the DS-5540, Public Charge Questionnaire.
On August 14, 2019, USCIS published a final rule amending the regulations related to the public charge ground of inadmissibility. The rule was to take effect on October 15, 2019. Before the regulation took effect, several nationwide injunctions halted its implementation. On January 27, 2020, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against DHS’s public charge rule, allowing DHS to implement the public charge rule nationwide, except for Illinois, which has gained a statewide injunction of its own. On February 5, 2020, USCIS issued policy guidance, effective February 24, 2020, to address the implementation of the public charge final Rule, including guidance speciifc to Illinois.
These polices apply to immigrants applying for visas or green cards processed inside the United States, including immigrants that leave for 180 days or more and apply to reenter.
NOTE: The rule is not retroactive. This means that benefits -- other than cash or long-term care at government expense -- that are used before the rule is effective on February 24, 2020, will not be considered in the public charge determination.
Benefits Included for Public Charge
Benefits Excluded from Public Charge
Cash Support for Income Maintenance*
Non-Emergency Medicaid**
Supplemental Nutrition Assistance Program (SNAP or Food Stamps)
Housing Assistance (Public Housing or Section 8 Housing Vouchers and Rental Assistance)
* Included under current policy as well; ** Exception for coverage of children under 21, pregnant women (including 60 days post-partum)
ANY benefits not on the included list will not be applied toward the public charge test. Examples include:
Disaster relief
Emergency medical assistance
Entirely state, local or tribal programs (other than cash assistance)
Benefits received by immigrant’s family members
CHIP
Special Supplemental Nutrition for Women Infants and Children (WIC)
School Breakfast and Lunch
Energy Assistance (LIHEAP)
Transportation vouchers or non cash transportation services
Non-cash TANF benefits
Tax credits, including the Earned Income Tax Credit and Child Tax Credit
Advance premium tax credits under the Affordable Care Act
There is no “bright-line” test in making a public charge inadmissibility determination. The mere presence of any one of the enumerated factors, alone, is not outcome determinative, except for the absence of a sufficient affidavit of support, where required. Instead, the officer must determine that the applicant's circumstances, assessed in their totality, suggest that the applicant is more likely than not to become a public charge.
Evaluating whether an applicant is inadmissible based on the totality of the applicant’s circumstances means evaluating all of the information provided by the applicant on the declaration of self-sufficiency, the adjustment of status application, and other associated forms; evidence provided and in the record; and statements by an applicant during an interview, if applicable. The totality of the circumstances analysis involves weighing all the positive and negative factors related to the factors as outlined below, as they apply to the applicant.
USCIS will accept the 01/08/20 and 01/31/19 edition of this form if it is postmarked before February 24, 2020
USCIS will not accept the 01/08/20 and 01/31/19 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants with a physical address in Illinois
On or after February 24, 2020, USCIS will accept only the edition date: 01/27/20 of the Form I-129, except those submitted by petitioners/aliens with a physical address in Illinois.
USCIS will accept the 12/02/19 edition of this form if it is postmarked before February 24, 2020
USCIS will not accept the 12/02/19 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants with a physical address in Illinois.
On or after February 24, 2020, USCIS will accept only the edition date: 01/27/20 of the Form I-129CW, except those submitted by applicants with a physical address in Illinois.
USCIS will accept the 07/15/19 and 12/23/17 edition of this form if it is postmarked before February 24, 2020
USCIS will not accept the 07/15/19 and 12/23/17 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-485, except those submitted by applicants/petitioners with a physical address in Illinois.
USCIS will accept the 07/15/19 and 12/23/17 edition of this form if it is postmarked before February 24, 2020
USCIS will not accept the 07/15/19 and 12/23/17 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-485A, except those submitted by applicants/petitioners with a physical address in Illinois.
USCIS will accept the 07/15/19 and 12/23/17 edition of this form if it is postmarked before February 24, 2020
USCIS will not accept the 07/15/19 and 12/23/17 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-485J, except those submitted by applicants/petitioners with a physical address in Illinois.
USCIS will accept the 3/6/18 edition of this form if it is postmarked before February 24, 2020
USCIS will not accept the 3/6/18 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-864, except those submitted by applicants/petitioners with a physical address in Illinois.
USCIS will accept the 3/6/18 edition of this form if it is postmarked before February 24, 2020
USCIS will not accept the 3/6/18 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-864A, except those submitted by applicants/petitioners with a physical address in Illinois.
USCIS will accept the 3/6/18 edition of this form if it is postmarked before February 24, 2020
USCIS will not accept the 3/6/18 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-864EZ, except those submitted by applicants/petitioners with a physical address in Illinois.
USCIS will accept the 3/13/18 edition of this form if it is postmarked before February 24, 2020
USCIS will not accept the 3/13/18 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-912, except those submitted by applicants/petitioners with a physical address in Illinois.
USCIS will accept the 12/2/19 edition of this form if it is postmarked before February 24, 2020
USCIS will not accept the 12/2/19 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
On or after February 24, 2020, USCIS will accept only the edition date: 1/27/20 of the Form I-601, except those submitted by applicants/petitioners with a physical address in Illinois.
USCIS will accept the 2/4/19 edition of this form if it is postmarked before February 24, 2020
USCIS will not accept the 2/4/19 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-539 and I-539A, except those submitted by applicants/petitioners with a physical address in Illinois.
USCIS announced that it will begin implementing the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on February 24, 2020.
The Final Rule will apply to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. For applications and petitions that are sent by commercial courier (e.g., UPS/FedEx/DHL), the postmark date is the date reflected on the courier receipt.
USCIS has clarified that it will not consider an individual’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before February 24, 2020 (instead of October 15, 2019), when deciding whether the alien is likely at any time to become a public charge under the Final Rule.
USCIS will post updated versions of Forms I-129, I-485 I-539, I-864, and I-864EZ and corresponding instructions, as well as Policy Manual guidance on www.uscis.gov during the week of February 3.
These updated forms must be used beginning February 24, 2020, otherwise applications and petitions using incorrect editions of the forms will be rejected.
USCIS plans to hold public engagement for immigration attorneys, industry representatives, and other relevant groups to discuss the final rule.
Note: The above guidance does not apply to applications or petitions filed in the State of Illinois, where the Final Rule remains enjoined as of January 30, 2020.
Letters submitted by public charge litigation teams on February 18, 2020, highlighting concerns with the USCIS Policy Manual’s Guidance on Public Charge, specifically around the agency’s attempts to 1) make seeking LPR status a negative factor and 2) establish a heightened burden of proof.
U.S. Citizenship and Immigration Services (USCIS) recently issued updated guidance concerning the Public Charge Rule in the USCIS Policy Manual in advance of the Rule’s implementation on February 24, 2020. See Ex. C. In at least two respects, the Manual demonstrates that the Rule’s scope is far broader than the longstanding definition of the term “public charge.” Unlike the Rule, the Manual specifies that applying for lawful-permanent resident (LPR) status is itself a negative factor in the Rule’s totality-of-the-circumstances test. USCIS Policy Manual vol. 8, pt. G, ch.12.A. The Manual also requires noncitizens undergoing public-charge determinations to demonstrate “clearly and beyond doubt” that they are unlikely at any point in the future to exceed the Rule’s threshold for what constitutes a public charge. USCIS Policy Manual vol. 8, pt. G, ch. 2.B. Thus, every applicant for adjustment of status will have an automatic strike against them in a public-charge determination that will be difficult to overcome by countervailing positive factors. These and other aspects of the Manual reinforce the conclusion that the Rule is contrary to the Immigration and Nationality Act.
The Supreme Court’s stay of the district court’s preliminary injunction does not authorize USCIS to use forms that mislead applicants and adjudicators about the effective date of the Rule or to add a new automatic negative factor to the USCIS Manual that is found nowhere in the final Rule or the NPRM. Given the time required for the agency to (a) fix the errors in the forms and the USCIS Manual, (b) either remove the automatic weight given to applying for LPR status or provide adequate notice and comment for this new element of the Rule, and (c) correct the standard of proof, the agency should defer the effective date from February 24, 2020 until such time as the agency can address these issues, and for a reasonable time thereafter to allow Plaintiffs and others to review the updated materials.
This advisory provides an overview of how adjudicators have applied the "totality of the circumstances" test in the public charge context to help advocates best counsel their clients and prepare applications in this climate of uncertainty.
In January 2018, DOS revised the Foreign Affairs Manual (FAM) to instruct consular officers to consider a wider range of public benefits when determining whether visa applicants who have received or are currently receiving benefits are inadmissible on public charge grounds. In August, 2019, Politico reported on immigrant visa denials because the individual might become dependent on government benefits, finding that, "The number of public charge denials for applicants from all nations also rose during the past year. Preliminary data obtained by POLITICO shows 12,179 visa rejections on public charge grounds through July 29 — which puts the department on pace to surpass last year’s total. The State Department disqualified only 1,033 people on public charge grounds in fiscal 2016. Public charge denials have increased in recent years as the State Department has issued fewer immigrant visas overall."
On October 15, 2019, DOS issued an interim final rule to align DOS’s public charge standards with those of DHS. The interim final rule was to take effect at 12:00 am (ET) on October 15, 2019. But, DOS announced that it will not implement the interim final rule until the use of a new form for information collection is approved by OMB.
On October 24, 2019, DOS published in the Federal Register the DS-5540, Public Charge Questionnaire for public comment. Due to litigation related to the DHS final rule on public charge, DOS halted implementation. On February 12, 2020, DOS published in the Federal Register, DOS Notice of Intent to Seek Emergency OMB Approval of Public Charge Questionnaire, seeking emergency Office of Management and Budget (OMB) approval of proposed form DS-5540, Public Charge Questionnaire, by February 24, 2020, so that DOS can implement its interim final rule on the public charge ground of visa ineligibility on this date.
"Between Oct. 1 and July 29, the State Department denied 5,343 immigrant visa applications for Mexican nationals on the grounds that the applicants were so poor or infirm that they risked becoming a “public charge,” according to the statistics. That’s up from just seven denials for Mexican applicants in fiscal year 2016, the last full year under former President Barack Obama."
DOJ Efforts to Change Public Charge Rules
A new public charge rule for DOJ is expected to be published in the Federal Register, according to the Unified Agenda of the Office of Management and Budget (OMB). The rule has been at OMB since July 3, 2019.
This policy would apply to immigrants who have already been admitted to the United States.
Politicoreports that the Justice Department plans to propose a regulation detailing when legal immigrants could be deported for receiving certain government benefits, according to new background info from DHS. The proposal deals with immigrants already admitted to the U.S., including legal immigrants with green cards - September 26, 2018
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