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

AILA Doc. No. 19050634 | Dated January 17, 2020

Resources related to the Trump administration’s proposed or enacted changes to how it handles the public charge ground of inadmissibility.

Current State of Play

Stop Button DHS Final Rule: On October 11, 2019, several courts enjoined and restrained DHS and USCIS from “enforcing, applying, or treating as effective” the DHS Public Charge Final Rule. In addition, courts specifically enjoined the government from implementing the use of any new or updated forms whose submission would be required under the Final Rule, including the Form I-129, Form I-485, Form I-539, Form I-864, Form I-864 EZ, Form I-944, and Form I-945. On December 5, 2019, a divided federal appeals court lifted several injunctions blocking the implementation but the policy remains on hold because there are still two nationwide injunctions from judges in Maryland and New York City. On January 8, 2020, the U.S. Court of Appeals for the Second Circuit denied the government's motion to stay the nationwide preliminary injunction issued by the Southern District Court of New York, which keeps the nationwide public charge injunction in place.

DOS Interim Final Rule: In January 2018, DOS revised the FAM instructing consular officers to consider a wider range of public benefits when determining whether a visa applicant is inadmissible. On October 15, 2019, DOS published an interim final rule to align DOS’s public charge standards with those of DHS, and then on October 24, DOS published the DS-5540, Public Charge Questionnaire for public comment. The interim final rule will not be implemented until the form and FAM revisions have been finalized. Given the public comment period for the form, the DOS rule will not be implemented in 2019.		 Stop Button

Background

From the Congressional Research Service:

Immigration law in the United States has long contained exclusion and removal provisions designed to limit government spending on indigent non-U.S. nationals. Under the INA, an individual may be denied admission into the United States or adjustment to lawful permanent resident (LPR) status if he or she is "likely at any time to become a public charge." An admitted individual may also be subject to removal from the United States based on a separate public charge ground of deportability, but this ground is rarely employed. Certain categories of individuals, such as refugees and asylees, are currently exempted from application of the public charge grounds.

DHS and DOS have primary responsibility for implementing the INA's public charge provisions. USCIS may make a public charge determination when an individual applies to adjust to LPR status. Abroad, DOS consular officers may make a public charge determination when an individual applies for a visa.

Although the INA does not explicitly define the term "public charge," since 1999, agency guidance has defined it to mean a person who is or is likely to become "primarily dependent" on "public cash assistance for income maintenance" or "institutionaliz[ed] for long-term care at government expense."

The Protecting Immigrant Families Campaign, along with other advocates including AILA, held the following webinar “Public Charge: What Immigration Attorneys Need to Know” on November 1, 2019.

Webinar
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Other Resources


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USCIS Efforts to Change Public Charge Rules

Public Charge Timeline Graphic

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 at 12:00 am (ET) on October 15, 2019.

AILA Statements

Government Announcements

  • 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.

AILA Resources

Litigation

Advocacy Resources

Media Resources

DOS Efforts to Change Public Charge Rules

Public Charge Timeline Graphic

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. The comment period will be open until December 23, 2019, and comments may be submitted via regulations.gov or via email at PRA_BurdenComments@state.gov. The interim final rule will not be implemented until the form and FAM revisions have been finalized. Given the public comment period for the form, the DOS rule will not be implemented in 2019.

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

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.

Cite as AILA Doc. No. 19050634.