USCIS Prepares to Implement Public Charge Regulation

The issue

USCIS has issued extensive policy guidance and new application forms as it prepares to implement its new public charge regulation starting February 24, 2020. Applicants for adjustment of status, as well as sponsoring employers and beneficiaries of applications to change or extend nonimmigrant status on Forms I-129 and I-539, will be subject to new forms and procedures when the rule takes effect. However, USCIS has confirmed that it will not apply the public charge rule to adjustments or changes or extensions of nonimmigrant status if the applicant, petitioning employer or beneficiary has a physical address in Illinois, where a federal district court has enjoined USCIS from applying the public charge rule.

A closer look

Starting February 24, 2020, 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 regulation means that foreign nationals seeking permanent residence through the adjustment of status process will be subject to significantly increased information and documentation requirements, and more intense scrutiny of their personal circumstances, if their applications are postmarked on or after February 24. Nonimmigrants seeking an extension or change of status will not be subject to the full impact of the rule, but as of the effective date, must satisfy a new public charge condition to be deemed eligible for their requested immigration benefit.

How the new procedures affect 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 matters. 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.  USCIS will also use a new edition of Form I-485, the application for adjustment of status, beginning February 24.

How the new requirements affect nonimmigrants

The rule creates a new eligibility condition for nonimmigrants seeking an extension of stay or change of status from within the United States. These applicants will be required to disclose whether they have received or are certified to receive certain public benefits on or after February 24, 2020. In order to negatively affect 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. Two public benefits received within one month will count as a foreign national having received two months of benefits.

Beginning February 24, nonimmigrant changes and extensions of status must be filed on new editions of Form I-129, the nonimmigrant worker petition (for extensions or changes of H-1B, L-1, O-1 status, among others), and Form I-539, the application to change or extend nonimmigrant status, for dependents of principal nonimmigrants, among others.

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.

How the new requirements affect petitioners and applicants in Illinois

USCIS has confirmed that it will not apply the public charge regulation to adjustments or nonimmigrant changes/extensions where the applicant, beneficiary or petitioner has a physical address in Illinois at the time of filing, in compliance with a federal district court order that enjoins the agency from applying the regulation in that state. In addition, the public charge rule will not be applied where the applicant, beneficiary or petitioner moves to a physical address in Illinois at any point before USCIS concludes adjudication of the relevant filing (provided the applicant, petitioner or beneficiary files a timely change of address with USCIS before the agency completes adjudication).

As a reminder, USCIS has asked a federal appeals court to lift the Illinois federal district court injunction against the public charge regulation. If the Seventh Circuit agrees, USCIS will apply the regulation to Illinois adjustments and applications to extend or change nonimmigrant status.

Fragomen is closely reviewing USCIS’s new policy guidance on the public charge regulation and will issue further client alerts in advance of the February 24 implementation date.

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