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AILA Doc. No. 19050634 | Dated April 26, 2021
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:
On August 14, 2019, USCIS published a final rule amending the regulations related to the public charge ground of inadmissibility. On March 9, 2021, USCIS stopped applying the rule to pending applications and petitions that would have been subject to that rule. On March 15, 2021, USCIS published a final rule removing from the Code of Federal Regulations the regulatory text DHS promulgated in the August 2019 public charge rule and restoring the regulatory text to appear as it did prior to the issuance of the August 2019 rule.
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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American Immigration Lawyers Association.
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