The Legal Immigrant

Mar 22, 2021

2019 Public Charge Rule Gets Tossed; 1999 Rule is Back

Section 212(a)(4) of the INA does not define “public charge.” But in 1999, USCIS and DOS guidelines began to define it to mean a person who is or is likely to become “primarily dependent” on the U.S. government for subsistence, as shown by the receipt of “public cash assistance for income maintenance” or “institutionalization for long-term care at government expense.” The prior Trump Administration introduced the new Final Rule on August 14, 2019. It amended how U.S. immigration agencies applied section 212(a)(4). The 2019 Rule gave USCIS more discretionary power to deny Form I-485 green card requests, and Form I-129 and Form I-539 applications to change status or extend status, on the public charge ground. The rule was set to take effect on October 15, 2019, i.e. 60 days after its publication. But federal court litigation delayed the implementation of the rule to February 24, 2020. For some time, USCIS was applying the 2019 Public Charge rule and requiring green card applicants to submit a Form I-944, Declaration of Self-Sufficiency, with financial documentation, such as a credit score report, proof of health insurance, proof of assets and resources and proof of liabilities and debts. Episode 9 of The Legal Immigrant podcast summarizes the beginning and end of the 2019 Public Charge Rule: (1) Federal court challenges to implementation of the 2019 Public Charge Rule On November 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the 2019 Public Charge rule nationwide. That decision was stayed by the U.S. Court of Appeals for the Seventh Circuit. On March 9, 2021, the Seventh Circuit lifted its stay and the U.S. District Court vacating the 2019 Public Charge Rule went into effect. As a result, USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to that rule. USCIS agreed to apply the 1999 Interim Field Guidance, which was in place before the Public Charge Final Rule was implemented, when adjudicating any green card applications or application for change/extension of status that was pending or received on or after March 9, 2021. (2) The 3 key changes under the 2019 Public Charge Rule (a) Expanded the definition of "public benefits" to include previously excluded programs, such as Federally funded Medicaid with certain exclusion; Supplemental Nutrition and Assistance Program (SNAP), formerly called food stamps; Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq. (b) Deemed applicants to be a public charge if they received one or more public benefits for more than 12 months in the aggregate within any 36-month period. (c) Applied the totality of the circumstances test based on age, health, family status, assets, resources, financial status, education, and skills. One heavily weighted negative factor was having received or been approved to receive one or more public benefits for more than 12 months in total within the 36-month period prior to applying for admission to the U.S., a green card, or a status change or extension. The shift toward the weighing of positive factors and negative factors meant the Form I-864, Affidavit of Support, was no longer relied on as sufficient proof – by itself – to demonstrate the applicant would not become a public charge in immigration cases that require the Affidavit of Support. (3) The decision to stop applying the Rule under the current Biden Administration A federal case challenging the 2019 Public Charge rule was dismissed by the U.S. Supreme Court upon the Biden Administration’s request. The new Administration has already stated it will not continue to apply the 2019 rule and will return to the 1999 rule. Because the Biden Administration has decided to not defend the rule, the Department of Justice will no longer pursue appellate review of judicial decisions invalidating or stopping enforcement of the 2019 public charge rule. There is no more need for advocacy groups to continue with this challenge in court. (4) How the decision to return to the 1999 Rule affects applications and petitions On or after March 9, 2021, applicants and petitioners should not provide information required solely by the 2019 Public Charge Final Rule. For example, applicants for adjustment to permanent residence should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3). (5) What is still required to meet the INA 212(4)(a) requirements Even though the 2019 Public Charge Rule has been tossed, statutory law regarding public charge inadmissibility is still in effect. It applies to: (a) Applicants for immigrant visas and green cards (unless Congress has exempted them from this ground). Congress has carved out certain exemptions to the public charge ground of inadmissibility as follows: * Refugees; * Asylees; * Certain T and U nonimmigrant visa applicants (human trafficking and certain crime victims, respectively); and * Certain self-petitioners under the Violence Against Women Act. (b) Applicants for extension of nonimmigrant stay or change of nonimmigrant status (such applicants are subject to the rule’s public benefit condition unless the nonimmigrant classification is exempted by law or regulation from the public charge ground of inadmissibility). As of March 9, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status, e.g. Form I-129 or Form I-539. While the 2019 Public Charge Final Rule no longer applies to pending applications and petitions as of March 9, applicants still have to show they will not become a public charge to the U.S., based on 1999 guidelines. Family-based green card or immigrant visa applicants must still submit the Form I-864, Affidavit of Support, from the petitioner (sponsor) and joint sponsor. Petitioners are still required to submit financial documents to demonstrate they meet the income requirement to sponsor their relative in the United States. This is general information only on the Public Charge Inadmissibility Ground. If you have a section 212(a)(4) problem, you may contact attorney Dyan Williams to request a consultation. For more information, see: * Form I-864: Key to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination * Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination Dyan Williams, Esq. info@dyanwilliamslaw.com www.dyanwilliamslaw.com

16 min