Featured Issue: Public Charge Changes at USCIS, DOJ, and DOS

Current State of Play

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April 26, 2021 - The U.S. Supreme Court denied without prejudice states’ attempts to intervene in the Northern District of Illinois case that vacated the DHS public charge final rule. Per the court’s order: “We deny the application, without prejudice to the States raising these and other arguments before the District Court, whether in a motion for intervention or otherwise. After the District Court considers any such motion, the States may seek review, if necessary, in the Court of Appeals, and in a renewed application in this Court.”

March 12, 2021 - The prior administration sought to finalize rules related to the public charge grounds of inadmissibility by DOS, DOJ, and DHS. As of today, the DOS rule remains enjoined, the DOJ rule was never published, and the DHS rule has been vacated.

Consistent with Executive Order 14012 directing the review of the Public Charge Rule, DHS announced that it will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 Public Charge Final Rule. As a result, DOJ filed a joint motion to dismiss the petition for certiorari in the Supreme Court, as well as joint motions to dismiss appeals in various circuit courts, including the case in the Seventh Circuit of Appeals which had stayed a nationwide injunction of the DHS Final Public Charge Rule. On March 9, 2021, the Seventh Circuit lifted its stay and the U.S. District Court for the Northern District of Illinois’s order vacating the Public Charge Final Rule nationwide went into effect.

Subsequently DHS published a final rule, that took effect on March 9, 2021 implementing the vacatur, and removing the 2019 public charge regulatory text from the CFR and restoring the regulatory text that existed prior to the 2019 rule. This final rule also notes that OMB approved changes to various forms used in the public charge analysis, including discontinuing the Forms I-944, I-356, and I-945, updating the Forms I-485, I-129, I-539, I-864 and I-912, and reinstating the Form I-864W.

On March 10, USCIS removed the Form I-944 from its website and provided guidance that it will no longer apply the 2019 Public Charge Final Rule and will apply the public charge inadmissibility statute consistent with the 1999 Interim Field Guidance on how to file Form I-485, Form I-129, and Form I-539 and respond to any related requests for evidence in light of this decision. For more information, please read this practice pointer:

Guidance for Filing Applications After USCIS Announces It Will Stop Applying the Public Charge Final Rule


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USCIS Efforts to Change Public Charge Rules

On August 14, 2019, USCIS published a final rule amending the regulations related to the public charge ground of inadmissibility. On March 9, 2021, USCIS stopped applying the rule to pending applications and petitions that would have been subject to that rule. On March 15, 2021, USCIS published a final rule removing from the Code of Federal Regulations the regulatory text DHS promulgated in the August 2019 public charge rule and restoring the regulatory text to appear as it did prior to the issuance of the August 2019 rule.

AILA Resources

Changes Under the Biden Administration

Client Resources

Overview of Public Charge

Comprehensive Summary of Public Charge Rule

Impact of Public Charge on Request for Change or Extension of Nonimmigrant Status

Impact of Public Charge Rule on VAWA, U, T Applicants, Asylum Seekers, and Refugees

COVID-19 and the Public Charge Rule

Practice Management Tips from AILA Practice and Professionalism Center

Summary of Benefits Including for Public Charge

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
  • Pell grants and student Loans
  • Any other program not listed in the left column

Provided by Protecting Immigrant Families (https://protectingimmigrantfamilies.org/analysis-research/).

AILA Statements

Government Announcements

Read Appendix: Totality of the Circumstances Framework

Form Current Version New Version USCIS Instructions
Form I-129, Petition for a Nonimmigrant Worker
  • 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.
I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker
  • 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.
I-485, Application to Register Permanent Residence or Adjust Status
  • 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.
I-485 Supplement A, Supplement A to Form I-485, Adjustment of Status Under Section 245(i)
  • 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.
I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)
  • 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.
I-864, Affidavit of Support Under Section 213A of the INA
  • 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.
I-864A, Contract Between Sponsor and Household Member
  • 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.
I-864EZ, Affidavit of Support Under Section 213A of the Act
  • 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.
I-912, Request for Fee Waiver
  • 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.
I-601, Application for Waiver of Grounds of Inadmissibility
  • 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.
I-539, Application To Extend/Change Nonimmigrant Status
  • 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.
I-944, Declaration of Self-Sufficiency
  • Do NOT use this form if you live in Illinois.
  • Do NOT submit this form before February 24, 2020.
I-945, Public Charge Bond
I-356, Request for Cancellation of Public Charge Bond


  • USCIS Releases Information on Public Charge Inadmissibility Determinations in Illinois – February 5, 2020
  • USCIS Issues Policy Guidance on Public Charge Ground of Inadmissibility – February 5, 2020
  • USCIS Announces Public Charge Rule Implementation – January 30, 2020

    • 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.
  • Posted to USCIS.gov on October 11, 2019:
  • Screenshot of Alert from USCIS.gov. ALERT: On Oct. 11, 2019, judges in three separate cases before U.S. District Courts for the Southern District of New York (PDF), Northern District of California (PDF), and Eastern District of Washington (PDF) enjoined DHS from implementing and enforcing the final rule related to the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act and postponed the effective date of the final rule until there is final resolution in the cases. Two of the injunctions are nationwide and prevent USCIS from implementing the rule anywhere in the United States.

Litigation

Advocacy Resources

Media Resources

DOS Efforts to Change Public Charge Rules

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.

On 2/20/20, OMB approved the new Form DS-5540, Public Charge Questionnaire, with changes from the draft form that DOS published for public comment on 10/24/19. On 2/21/20, DOS also published revisions to the Foreign Affairs Manual on Public Charge, with an effective date of 2/24/20.

Government Announcements

Attorney Resources

Advocacy Resources

Litigation Resources

Media Resources

  • Politico: Exclusive: Visa denials to poor Mexicans skyrocket under Trump’s State Department - August 6, 2019
    • "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

In December 2020, DOJ withdrew its public charge rule, “Inadmissibility and Deportability on Public Charge Grounds” from OIRA.

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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.

Cite as AILA Doc. No. 19050634.