Public Charge Rule Set To Take Effect October 15, But Faces Legal Challenges

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At a glance

• DHS’s new public charge regulation is set to take effect Tuesday, October 15, though a number of U.S. states and advocacy groups are challenging the rule.
• Unless the regulation is blocked by a federal court, starting October 15, adjustment of status applicants will be required to provide financial and credit documentation, in addition to the personal information and documentation already required under current rules.
• Nonimmigrants seeking an extension of stay or a change of status will be required to disclose certain public benefits they receive or are certified to receive on or after October 15.

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The issue

Starting October 15, 2019, a regulation that broadens USCIS’s authority to determine whether certain foreign nationals will become a public charge of the United States and expands the inquiry to nonimmigrants seeking an extension or change of status is set to take effect. 

The rule is the target of multiple lawsuits in federal district courts in California, New York, Washington, and Maryland. Unless one or more of these courts issues a temporary injunction to prevent the rule from taking effect, foreign nationals seeking green cards through the adjustment of status process will be subject to significantly increased information and documentation requirements, and more intense scrutiny of their personal circumstances. Nonimmigrants seeking an extension or change of status will not be subject to the full impact of the rule, but must satisfy a new public charge condition to be deemed eligible for their requested immigration benefit.

Background

U.S. immigration law has long permitted the government to find a foreign national inadmissible and deny permanent residence if it determines that the foreign national is likely to become a public charge in the future. Under existing guidance, a person is generally only deemed a public charge if determined likely to become primarily dependent on the U.S. government through receipt of cash assistance. The new regulation expands the definition to include foreign nationals who use a much broader set of public benefits – including some non-cash benefits – for more than 12 months in a 36-month period. In addition, it broadens the public charge inquiry, at least partially, to certain nonimmigrants in the United States, who had not previously been subject to such a review.

How the rule affects adjustment of status applicants

Under the new public charge framework, adjustment of status applicants will be reviewed under a “totality of circumstances” test that will take into account each applicant’s age, household size, income, financial liabilities, receipt of certain public benefits, health, and education and skills, at a minimum.

In a significant change from the current process, adjustment applicants will be required to submit a report of their credit history and credit score, as well as detailed information about health insurance coverage, among other documents. The totality test will also include an inquiry into any health conditions that may render the applicant unable to care for him- or herself. To assess adjustment applicants under the new test, USCIS will require applicants to complete new Form I-944, Declaration of Self-Sufficiency.

Only adjustment of status applicants subject to the public charge ground of inadmissibility will be subject to the new rule. Refugees, asylees and other humanitarian or special immigrant categories of applicants are exempt.

How the rule affects nonimmigrants

The rule creates a new eligibility condition for nonimmigrants seeking an extension of stay or change of status. These applicants will be required to disclose whether they have received or are certified to receive certain public benefits on or after October 15, 2019. In order to negatively impact the application, the foreign national must have received the benefits for more than 12 months within a 36-month period since obtaining their current nonimmigrant status. Nonimmigrant applicants are not subject to a totality of circumstances test and are not required to submit Form I-944. 

Certain nonimmigrant categories, mostly related to humanitarian and victim classifications, are exempt from the public benefits condition.

What’s next for the public charge regulation

As noted above, the public charge regulation is being challenged in several federal lawsuits. The plaintiffs in those lawsuits are seeking temporary injunctions that would prohibit USCIS from implementing the rule in whole or in part. Several courts are expected to decide on injunction requests in the coming days.

Unless the regulation is blocked by a federal court, adjustment of status applications and nonimmigrant extensions and change of status requests postmarked on or after October 15 will be subject to the new rule and its heightened standards. 

Fragomen is monitoring all public charge litigation and agency activity, and will provide updates as developments occur.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.