UPDATE to Implementation of New DHS Public Charge Rule

**UPDATE** On March 9, 2021, DHS rescinded implementation of the new public charge rule that went into effect last year, because the Biden Administration withdrew the prior Administration’s appeal of a pending federal lawsuit, which had the effect of reinstating a lower court decision which invalidated the 2019 Public Charge rule. As of March 9, anyone filing Form I-485 Application to Adjust Status does not have to submit Form I-944 (or its supporting documents), and any nonimmigrants seeking to change or extend status are not required to answer Part 6 of Form I-129, and their dependents are not required to answer Part 5 of Form I-539 (or Part 3 of Form I-539A). For anyone who has a petition or application currently pending with USCIS where those sections were already answered, USCIS has stated that it will not review or consider that information when adjudicating the petition or application.

 

**UPDATE** On February 24, 2020, DHS implemented its new public charge rule, meaning that adjustment (I-485) applications, and certain I-129 petitions and I-539 applications filed with USCIS on or after this date are subject to the new rules. Please see the post below (from January 31, 2020 for more detailed information).

Additionally, the U.S. Department of State (DOS) announced on February 21, 2020 that its new public charge rule would also go into effect on February 24, 2020. DOS has created a new form, DS-5540, that all visa applicants must now complete as part of the standard visa application process for both nonimmigrant (H-1B, E-3, B, F-1, J-1, etc.) visas and immigrant (permanent residence) visas. DOS estimates that it will take applicants approximately 4.5 hours to complete this new form, not including the other required forms and documents required for the visa application process. The new form is available at https://eforms.state.gov/Forms/ds5540.PDF.

We do not yet know the full impact of this new public charge rule on either the DHS or DOS processes, and will have to see what happens going forward.

 

**UPDATE** On January 31, 2020, the U.S. Department of Homeland Security (DHS) announced that the new public charge rule will take effect on Monday, February 24, 2020. This means that adjustment (I-485) applications, and certain I-129 petitions and I-539 applications (for requests for changes or extensions of nonimmigrant status only) that are postmarked on or after February 24, 2020 will be subject to the new public charge rules.

During the week of February 3-7, 2020, U.S. Citizenship and Immigration Services (USCIS), which is a part of DHS, will post updated forms, as well as submission instructions and additional guidance on its website (USCIS.gov), for required use starting on and after February 24, 2020.

USCIS will reject any applications and petitions filed using the old forms it receives after February 24, 2020.

Public Charge details:

The new public charge rule updates the definition of public charge to mean ‘a noncitizen who receives specified public benefits for more than 12 months in the aggregate within any 36 month period.’ Receipt of two benefits in any one month will count as two months’ worth of benefits. In making its assessment, USCIS will determine if an individual is “more likely than not” to become a public charge in the future, after considering the ‘totality of the alien’s circumstances by weighing all relevant factors,’ including the factors described below:

  1. Applicant’s age: negative factor if younger than 18 or older than 65
  2. Health: negative factor if person has condition that is likely to require extensive medical treatment
  3. Family status: negative factor if person is supporting large household
  4. Assets, Resources and Financial Status: many contributing factors will be reviewed, including where the household falls in comparison with the federal Poverty Guidelines
  5. Education and Skills: negative factor if not a high school graduate or equivalent, or limited English proficiency or is not a full-time student and/or doesn’t have a work history or the ability to obtain or maintain lawful employment with income sufficient to avoid becoming a public charge
  6. Prospective Immigration Status and Expected Period of Admission: negative factor if the requested period of admission is long
  7. Affidavit of Support (I-864), if required: negative factor if this form is required, but person’s sponsor is a distant relative or no relation or doesn’t live in the same household; most if not all of the employment based immigration processes do not require Form I-864

The types of public benefits that USCIS will review in this public charge analysis include receipt of the following benefits:

  1. Supplemental Security Income (SSI)
  2. Temporary Assistance for Needy Families (TANF)
  3. Federal, state or local cash benefit programs for income assistance
  4. Supplemental Nutrition Assistance Program (SNAP, also known as “food stamps”)
  5. Section 8 Housing Choice Voucher Program and Project-Based Rental Assistance
  6. Section 9 Public Housing
  7. Medicaid (with certain exceptions)

USCIS will only consider the individual to have received a public benefit if he/she is the named beneficiary of the benefit, meaning that benefits obtained on behalf of another named person (spouse, children) will NOT count in the determination of the use of public benefits for that individual person.

Foreign nationals who are exempt from this new rule include asylees, refugees, Violence Against Women Act (VAWA) applicants, U applicants, applicants in Temporary Protected Status (TPS) status, people applying for permanent residence abroad during a consular interview process, other humanitarian or special immigrant categories, and military families who receive public assistance.

Summary:

  • New public charge rule takes effect on Monday, February 24, 2020
  • Relevant applications and petitions sent to USCIS must be postmarked before February 24, 2020 to avoid needing to comply with the new public charge rules
  • New forms and instructions will be made available on the USCIS website (USCIS.gov) during the week of February 3-7, 2020
  • Due to the increase in required documentation related to the public charge determination after February 24, 2020, the NC State community, including sponsoring units and our foreign national employees, should expect an increase in processing times during both case preparation with IE and USCIS review
  • This new rule could lead to more Requests For Evidence (RFEs) and possibly even denials
  • USCIS will not implement this new rule retroactively, meaning that applications and petitions filed before the February 24, 2020 deadline will not have to meet the new requirements
  • For applications and petitions received on or after February 24, 2020 that are subject to the new public charge rule, USCIS will only apply the requirements to public benefits received on or after February 24, 2020; however, any past use of public benefits (before that date) will be viewed as a negative factor in the “totality of circumstances” review discussed above
  • To satisfy the new rule and be eligible for the benefit sought, a person must demonstrate that he/she has not received public benefits over the designated timeperiod or threshold (after February 24, 2020) since obtaining the nonimmigrant or immigrant status that they seek to extend, change or obtain
  • The Department of State (DOS) has not indicated when it will implement similar public charge requirements for certain visa applications made at U.S. Consulate and Embassies world-wide, but an announcement is expected soon.

Additional information from USCIS is available at https://www.uscis.gov/news/news-releases/uscis-announces-public-charge-rule-implementation-following-supreme-court-stay-nationwide-injunctions.

**UPDATE** On January 27, 2020, the U.S. Supreme Court granted the Trump Administration’s request to end the nationwide injunction against the Department of Homeland Security’s public charge rule. This means that DHS is now permitted to implement this new regulation, and we anticipate receiving notice very soon regarding when the agency will begin implementing the new regulation and when it will require the use of new forms under the Final Rule, including revised Forms I-129, I-539, and I-485, among others.
October 15, 2019: On Friday (October 11, 2019), a federal district court temporarily stopped the U.S. Department of Homeland Security (DHS) from implementing new “public charge” requirements for certain nonimmigrant and immigrant petitions and applications. Also  on the same day, the U.S. Department of State (DOS) issued new regulations (which were immediately postponed) to apply this same “public charge” analysis to visa applications. Because DHS may now implement its new public charge final rule, it is probable that very soon, DOS will implement its new public charge visa review process, meaning that visa applicants will be required to meet a higher standard and provide additional information during their visa application process, to determine whether they are likely at any time to become a “public charge” after admission into the United States.
Examples of public benefits that will be reviewed in this public charge analysis include, among other things, the receipt of: Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF); federal, state or local cash benefit programs for income assistance; Supplemental Nutrition Assistance Program (SNAP, also known as “food stamps”); Section 8 Housing Choice Voucher Program; Section 9 Public Housing; and Medicaid (with certain exceptions).
Upon official implementation, anyone applying for certain nonimmigrant and immigrant classifications will need to provide extra  information and documentation for DHS to conduct this public charge analysis. This may include inquiries about receipt of prior government benefits, medical conditions, health insurance, and financial assets and liabilities, among other things deemed relevant by the DHS officer to make a public charge determination.