Featured Issue: Public Charge Changes at USCIS, DOJ, and DOS
AILA Doc. No. 19050634 | Dated April 26, 2021
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:
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*
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:
Emergency medical assistance
Entirely state, local or tribal programs (other than cash assistance)
Benefits received by immigrant’s family members
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
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.
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)
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.
"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.
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
AILA.org should not be relied upon as the exclusive source for your legal research. Nothing on AILA.org constitutes legal advice, and information on AILA.org is not a substitute for independent legal advice based on a thorough review and analysis of the facts of each individual case, and independent research based on statutory and regulatory authorities, case law, policy guidance, and for procedural issues, federal government websites.