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AILA Doc. No. 19050634 | Dated June 11, 2020
Resources related to the Trump administration’s proposed or enacted changes to how it handles the public charge ground of inadmissibility.
DHS Final Rule: On February 22, 2020, USCIS confirmed that it will implement the Inadmissibility on Public Charge Grounds final rule on February 24, nationwide after the Supreme Court granted the government's motion for a stay of the Illinois-based injunction. The final rule will apply only to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. For applications and petitions sent by commercial courier (such as UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt.
DOS Interim Final Rule: DOS will implement the new public charge standards pursuant to the DOS Interim Final Rule beginning on February 24, 2020. On February 20, OMB approved the new Form DS-5540, Public Charge Questionnaire. On February 21, DOS also published revisions to the Foreign Affairs Manual on Public Charge, with an effective date of February 24, 2020.
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|
** 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:
Provided by Protecting Immigrant Families (https://protectingimmigrantfamilies.org/analysis-research/).
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.
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):
|Form||Current Version||New Version||USCIS Instructions|
|Form I-129, Petition for a Nonimmigrant Worker||
|I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker||
|I-485, Application to Register Permanent Residence or Adjust Status||
|I-485 Supplement A, Supplement A to Form I-485, Adjustment of Status Under Section 245(i)||
|I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)||
|I-864, Affidavit of Support Under Section 213A of the INA||
|I-864A, Contract Between Sponsor and Household Member||
|I-864EZ, Affidavit of Support Under Section 213A of the Act||
|I-912, Request for Fee Waiver||
|I-601, Application for Waiver of Grounds of Inadmissibility||
|I-539, Application To Extend/Change Nonimmigrant Status||
|I-944, Declaration of Self-Sufficiency||
|I-945, Public Charge Bond|
|I-356, Request for Cancellation of Public Charge Bond|
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.
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.