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AILA Doc. No. 19050634 | Dated February 22, 2021
February 22, 2021 – The Supreme Court granted certiorari in DHS, et al. v. State of New York, et al. For more information, see: Reuters: U.S. Supreme Court to Review a Hardline Trump Immigration Rule. Also, AILA’s USCIS HQ (Benefits Policy) Committee provides a practice pointer addressing the current state of play regarding the public charge grounds of inadmissibility in light of President Biden’s February 2, 2021, Executive Order, “Restoring Faith in our Legal Immigration System and Strengthening Integration and Inclusion Efforts for New Americans.”
On November 3, 2020, the Seventh Circuit has issued an administrative stay of the N.D. of Illinois decision to vacate the DHS Public Charge Final rule pending an appeal which is effective immediately. On November 19, 2020, the Seventh Circuit granted a motion for stay pending appeal and request for immediate administrative stay filed by the government. Accordingly, adjustment of status applications must be filed with the Form I-944. AILA will continue to monitor the situation and provide any updates.
On November 2, 2020, the district court in Cook County, Illinois, et al v. Wolf et. al., (19-cv-6334), granted summary judgment in favor of Plaintiffs on their claim that DHS’s Public Charge Rule, 84 Fed. Reg. 41,292 (Aug. 14, 2019) violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et. seq. The district court specifically ruled that (1) the public charge exceeds DHS’s authority under the public charge provision of the INA, 8 U.S.C. § 1182(a)(4)(A); (2) is not in accordance with law; and (3) is arbitrary and capricious. Therefore, the court immediately set aside the DHS Public Charge Rule nationwide without staying its decision pending appeal.
On September 11, 2020, the Second Circuit Court of Appeals stayed a district court's nationwide injunction on the DHS public charge rule. This means that USCIS is now free to require the Form I-944 in all jurisdictions. At this time USCIS has not updated its webpage related to the Public Charge injunction.
On August 12, 2020, the Second Circuit Court of Appeals limited a lower court nationwide injunction on the DHS public charge rule; the rule is now barred only in Vermont, Connecticut, and New York. The August 12, 2020, decision did not impact the July 29, 2020, district court order granting an injunction that enjoins the government from implementing, or taking any actions to enforce or apply, the 2018 FAM Revisions, the DOS public charge rule, or the President’s October 4, 2019 healthcare proclamation during the COVID-19 pandemic.
On July 29, 2020, the U.S. District Court for the Southern District of New York enjoined the government from enforcing, applying, implementing, or treating as effective, the USCIS Final Rule on Inadmissibility on Public Charge Grounds (84 FR 41292, 8/14/19) during the COVID-19 pandemic.
The court also issued a separate order granting an injunction that enjoins the government from implementing, or taking any actions to enforce or apply, the 2018 FAM Revisions, the DOS Interim Final Rule on Visa Ineligibility on Public Charge Grounds (84 FR 54996, 10/11/19), or the President’s October 4, 2019 Proclamation, Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System in Order to Protect the Availability of Healthcare Benefits for Americans (84 FR 53991, 10/9/19) during the COVID-19 pandemic.
On July 31, 2020, USCIS posted guidance, stating that "As long as the July 29,2020, SDNY decision is in effect, USCIS will apply the 1999 public charge guidancethat was in place before the Public Charge Rule was implemented on Feb.24,2020 to the adjudication ofany application for adjustment of status on or aer July 29,2020. In addition, USCIS will adjudicate anyapplication or petition for extension of nonimmigrant stay or change of nonimmigrant status on or aerJuly 29,2020, consistent with regulations in place before the Public Charge Rule was implemented; inother words, we will not apply the public benefit condition."
On August 7, 2020, DOS provided an update in which it stated that it is complying with the nationwide injunction and is in the process of updating its guidance to consular officers on how to proceed. In the interim, visa applications that appear to be ineligible under INA 212(a)(4) will be refused for administrative processing to allow for consultation with the DOS, including legal review to ensure compliance with applicable court orders. Visa applicants are not required to complete nor should they present the DS-5540, Public Charge Questionnaire.
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.
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.
Cite as AILA Doc. No. 19050634.
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