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

DHS Final Rule

Stop Button On October 11, 2019, the U.S. District Court of the Southern District of New York enjoined and restrained the Department of Homeland Security (DHS) and USCIS from “enforcing, applying, or treating as effective” the DHS Public Charge Final Rule. In addition, the court 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. As of 5:00 pm (ET), USCIS appeared to have removed the new/revised forms from its website. Stop Button

DOS Interim Final Rule

On October 11, 2019, DOS published an interim final rule that amends 22 CFR 40.41, Ineligibility Based on Public Charge Grounds, to add certain definitions, including definitions of public charge, public benefit, alien's household, and receipt of public benefit. On October 15, 2019, DOS announced that "Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled. The Department is seeking approval for use of a new form before it implements any changes to our processes. We will inform applicants of any changes to current visa application procedures."


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."

Updates

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 August 14, 2019, USCIS published a final rule amending the regulations related to the public charge ground of inadmissibility. The rule is effective at 12:00 am (ET) on October 15, 2019. DHS will apply this rule only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date. Applications and petitions already pending with USCIS on the effective date of the rule (i.e., were postmarked before the effective date of the rule and were accepted by USCIS) will not be subject to the rule.

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).

USCIS Efforts to Change Public Charge Rules

AILA Statements

Government Announcements

  • Posted to USCIS.gov:
  • 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.

Attorney Resources

Litigation

Advocacy Resources

Media Resources

DOJ Efforts to Change Public Charge Rules

DOS Efforts to Change Public Charge Rules

  • 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."

Government Announcements

Attorney Resources

Advocacy Resources

Litigation Resources

Cite as AILA Doc. No. 19050634.