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

Current State of Play

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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Learn More

• USCIS Efforts to Change Public Charge Rules
• DOS Efforts to Change Public Charge Rules
• DOJ Efforts to Change Public Charge Rules

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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

• Practice Pointer: Guidance for Filing Applications After USCIS Announces It Will Stop Applying the Public Charge Final Rule – March 11, 2021
• Practice Pointer: Biden Administration Announces Limited Immediate Change to Public Charge Rule – February 10, 2021

Client Resources

• How Does the New Public Charge Rule Affect Your Clients

Overview of Public Charge

• Public Charge and Affidavits of Support: A Practitioners Guide, 2d Ed. (Print)
• Practice Alert: USCIS Implementation of the Public Charge Regulation – January 28, 2020
• Practice Alert: DHS Publishes Correction to the Public Charge Final Rule in the Federal Register - October 2, 2019

Comprehensive Summary of Public Charge Rule

• Practice Advisory: 2020 Comprehensive Public Charge Update and Strategies – January 30, 2020
• Practice Pointer: Understanding the New DHS Rule on Public Charge Inadmissibility – October 10, 2019

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

• Practice Pointer: Requests for Change or Extension of Nonimmigrant Status Are Subject to Heightened Scrutiny Under DHS’s Public Charge Final Rule

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

• Practice Pointer: Effect of the Public Charge Final Rule on U- and T-Visa/VAWA Self-Petitioners
• Practice Pointer: DHS's Public Charge Final Rule Does Not Affect Asylees or Refugees
• Practice Pointer: T Visa Adjustment of Status and the Public Charge Ground of Inadmissibility

COVID-19 and the Public Charge Rule

• Practice Pointer: Considerations When Discussing Unemployment Insurance Benefits with Immigration Clients – April 15, 2020
• Practice Alert: Is My Immigration Client Eligible for a Recovery Rebate under the CARES Act? – April 6, 2020
• Practice Alert: COVID-19 and the Public Charge Rule – April 2, 2020

Practice Management Tips from AILA Practice and Professionalism Center

• Public Charge: New Ethical Considerations for Adjustment Cases – March 3, 2020
• Template Form I-944 Questionnaire
• Preparing Your Practice for Public Charge Cases – February 27, 2020
• Seven Quick Tips to Adopting Public Charge Process Changes – February 13, 2020

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

• AILA Disappointed in Supreme Court Stay of Injunction of Public Charge Rule – January 27, 2020
• AILA Files Lawsuit to Halt Last-Minute Form Changes as Administration Seeks to Implement Public Charge Rule - October 7, 2019
• AILA and Partner Organizations Urge DHS to Delay Implementation of Public Charge Rule - October 3, 2019
• AILA Press Release: DHS Rule Will Hurt Working Class Families and Restrict Legal Immigration – August 12, 2019

Government Announcements

• USCIS Provides Update on Public Charge Rule Following Second Circuit Decision – September 22, 2020
• USCIS Provides Information on Injunction of the Public Charge Grounds Final Rule – August 4, 2020
• DHS Implements Inadmissibility on Public Charge Grounds Final Rule – February 24, 2020
• DHS to Implement Inadmissibility on Public Charge Grounds Final Rule Nationwide - February 22, 2020
• CIS Ombudsman’s Office Issues Alert on Implementation of Public Charge Final Rule – February 18, 2020

• From the USCIS Policy Manual: Totality of the Circumstances

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.

Read Appendix: Totality of the Circumstances Framework

• On February 5, 2020, USCIS published revised forms consistent with the final rule on the public charge ground of inadmissibility. Beginning February 24, 2020, applicants and petitioners must use new editions of the following forms below (except in Illinois, where the rule remains enjoined by a federal court):

USCIS Forms Table

• 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:

• USCIS 60-Day Notice and Request for Comments on New Form G-1552, Sponsor Deeming and Agency Reimbursement (84 FR 69386, 12/18/19)
• NARA Notice of Agency Records Schedules Including USCIS Records on Public Charge Bonds (84 FR 51642, 9/30/19)
• USCIS Corrections to Final Rule on Inadmissibility on Public Charge Grounds (84 FR 52357, 10/2/19)
• USCIS Final Rule on Inadmissibility on Public Charge Grounds (84 FR 41292, 8/14/19)
  • See draft Form I-129, Form I-485, Form I-539, Form I-864, Form I-864 EZ, Form I-944, and Form I-945
• USCIS Announces Final Rule on Inadmissibility on Public Charge Grounds – August 12, 2019
• White House Issues Memo Ordering Strict Enforcement of Sponsor-Reimbursement Laws - May 23, 2019
• USCIS Notice of Proposed Rulemaking on Public Charge Ground of Inadmissibility (83 FR 51114, 10/10/18)
• USCIS Provides Background Information and FAQs on Proposed Change to Public Charge Ground of Inadmissibility - October 16, 2018
• DHS Announces New Proposed Immigration Rule on Public Charge - September 22, 2018
• CRS Issues FAQs on "Public Charge" - September 19, 2018

Litigation

• CA9 Upholds Limited Preliminary Injunctions of DHS Public Charge Rule (City and County of San Francisco, et. al. v. USCIS 12/2/20)
  
  • Practice Alert: Ninth Circuit Court of Appeals Upholds Limited Preliminary Injunctions of the DHS Public Charge Rule – December 2, 2020
• CA2 Stays Nationwide Injunction on DHS Public Charge Rule (State of New York, et al., v. DHS, et al., 9/11/20)
  
  • Practice Alert: Impact of Recent Court Decisions on the DHS and DOS Public Charge Rules – October 9, 2020
• CA2 Limits Public Charge Injunction to Vermont, Connecticut, and New York (State of New York, et al., v. DHS, et al., 8/12/20)
• District Court Issues Nationwide Injunction on Both DOS and DHS Public Charge Regulations Due to COVID-19 – July 29, 2020
• AILA and Partners File Complaint Challenging USCIS Implementation of New Public Charge Regulation (Khudheyer et al. v. Cuccinelli, 7/13/20)
  
  • Press Release: LPR Applicants, Their Sponsors, and Immigrant and Civil Rights Groups Sue Over Law Violations in Implementation of Trump Administration’s Public Charge “Wealth Test” – July 13, 2020
• Supreme Court Issues Stay of Nationwide Injunction Against DHS Public Charge Rule (DHS v. New York, 1/27/20)
• 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.
  
  • Letter to Fourth Circuit in CASA de Maryland, Inc. v. Trump
    
    • 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.
  • Letter to DOJ in MRNY v. Cuccinelli and New York v. Department of Homeland Security
    
    • 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.
• Public Charge Litigation Tracker (Center on Budget and Policy Priorities and Massachusetts Law Reform Institute)
• District Judge Enjoins DHS Public Charge Final Rule in Illinois (Cook County, Illinois v. McAleenan, 10/14/19)
• District Court Issues Narrow Preliminary Injunction on Public Charge Rule (City and County of San Francisco, et al. v. USCIS, 10/11/19)
• AILA Challenges USCIS's Plan to Stop Accepting Current Editions of Certain Forms Despite Failing to Publish New Editions (American Immigration Lawyers Association, et. al. v. Cuccinelli, 10/7/19)
• CNBC: States push courts to block Trump ‘public charge’ immigrant rule as groups warn it could harm the US economy – August 28, 2019
• Nonprofits and Advocates File Lawsuit to Block Implementation of Public Charge Final Rule (La Clinica de la Raza v. Trump, 8/16/19)
• Thirteen States File Lawsuit over Public Charge Final Rule (State of Washington, et. al., v. DHS, 8/14/19)
• Two California Counties File Lawsuit over Public Charge Final Rule (City and County of San Francisco and County of Santa Clara v. DHS, 8/13/19)

Advocacy Resources

• Migration Policy Institute: The Public-Charge Rule: Broad Impacts, But Few Will Be Denied Green Cards Based on Actual Benefits Use – March 2020
• TRAC: Public Charge Law is Rarely Used to Deport Immigrants—Is That About to Change? – February 28, 2020
• Protect Immigrant Families:
  
  • Slides and recording from presentation on SCOTUS decision
  • Public Charge: Does this apply to me?
  • KNOW YOUR RIGHTS! Public Charge Messages for Community Members
  • Should I Keep My Kids Enrolled in Health & Nutrition Programs?
• CLINIC: Resources Related to DHS' Final Rule on Public Charge
  • Trainings and Webinars
  • Legal Analysis and Practitioner Resources
  • Advocacy Tools and Talking Points
  • Outreach to the Administration
• Protecting Immigrant Families Campaign: Changes to Public Charge: Analysis and Frequently Asked Questions – Updated September 2019
• National Immigration Law Center: NILC Announces Intent to File Legal Challenge to Trump Public Charge Regulation - August 12, 2019
• ILRC: Totality of the Circumstances: Assessing the Public Charge Ground of Inadmissibility - May 3, 2019
  
  • 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.
• American Immigration Council's Immigration Impact: Proposed 'Public Charge' Regulation Draws Hundreds of Thousands of Comments - December 11, 2018
• AILA and the Council Submit Comment Opposing the Proposed Public Charge Rule - December 10, 2018
• CHC Members Submit Comments Opposing the Public Charge Proposed Rule - December 10, 2018
• New York Immigration Coalition Practice Advisory: Counseling Clients on Public Charge and Public Benefits - December 1, 2018
• National Immigration Forum: Fact Sheet - Immigrants and Public Benefits - August 21, 2018
• Think Immigration: Proposed Public Charge Rule Spreads Panic, But Would Fail at Cutting Costs - October 11, 2018
• AILA Press Release: New Rule Would Impose Class-Based Limits on Immigration, Bringing Harm to Hardworking Families - September 24, 2018
• CATO Institute: New Rule to Deny Status to Immigrants Up to 95% Self-Sufficient - September 24, 2018
• CLINIC: USCIS Proposes Vast Changes to Public Charge Definition - September 23, 2018

Media Resources

• CNN: Judge Blocks Administration from Implementing ‘Public Charge’ Rule for Immigrants During Pandemic – July 29, 2020
• Forbes: Supreme Court Approves Most Consequential Economic Policy Of Trump Era – January 28, 2020
• CNN: Trump asks Supreme Court to allow public charge rule to go into effect – January 13, 2020
• NPR: The History Of 'Public Charge' Requirements In U.S. Immigration Law - August 13, 2019
• The Hill: California counties file first lawsuit over Trump 'public charge' rule - August 13, 2019
• Vox: Why the Trump administration is going after low-income immigrants, explained by an expert - August 12, 2019
• The Washington Post: Trump officials move to deny green cards, path to citizenship for poor immigrants - August 12, 2019
• Associated Press: New rules to deny green cards to many legal immigrants - August 12, 2019

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

• DOS Provides Update on Public Charge Following Nationwide Injunction – August 7, 2020
• DOS 30-Day Notice and Request for Comments on Form DS-5540 (85 FR 33772, 6/2/20)
• DOS Updates Its Information on Public Charge for Visa Applicants – March 13, 2020
• DOS Notice of OMB Emergency Approval of Form DS-5540 (85 FR 13694, 3/9/20)
• Form DS-5540, Public Charge Questionnaire
• 9 FAM 302.8 – Public Charge – INA 212(A)(4)
• DOS Notice of Intent to Seek Emergency OMB Approval of Public Charge Questionnaire (85 FR 8087, 2/12/20)
• DOS 60-Day Notice of Proposed Information Collection on a Public Charge Questionnaire (84 FR 57142, 10/24/19)
  • Draft Form DS-5540, Public Charge Questionnaire
• DOS Announcement on Interim Final Rule on Public Charge – October 15, 2019
• DOS Interim Final Rule on Visa Ineligibility on Public Charge Grounds (84 FR 54996, 10/11/19)
  • AILA Submits Comment Opposing the DOS Interim Final Rule on Public Charge – November 12, 2019
• DOS Issued Cable on Update to 9 FAM 302.8 Public Charge - January 4, 2018

Attorney Resources

• Practice Pointer: Understanding the DOS Interim Final Rule on Public Charge Grounds
• AILA DOS Liaison Q&As (10/3/19)
• Friday FAM on Public Charge Grounds of Inadmissibility
• AILA, CLINIC, and NILC Provides Update on FAM Changes to Public Charge - September 12, 2018
• Practice Alert: Public Charge Denials in Ciudad Juarez - June 25, 2018

Advocacy Resources

• AILA, CLINIC, and NILC Express Concerns Over Improper Public Charge Determinations and I-601A Revocations - August 28, 2018
• The National Immigration Law Center Provides Fact Sheet on Changes to "Public Charge" Instructions in the DOS FAM

Litigation Resources

• District Court Issues Nationwide Injunction on Both DOS and DHS Public Charge Regulations Due to COVID-19 – July 29, 2020
• City of Baltimore Files Lawsuit Challenging DOS Change to Foreign Affairs Manual on Public Charge Ground of Inadmissibility (Baltimore v. Trump, 11/28/18)

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.

• Protecting Immigrant Families: Public Charge & Deportation – FAQ for Advocates and Community Members – July 10, 2019
• Reuters: Exclusive: Trump administration proposal would make it easier to deport immigrants who use public benefits - May 3, 2019
• Politico reports 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

Cite as AILA Doc. No. 19050634.