DHS Public Charge Rule Invalidated as Biden Administration Drops Lawsuit Appeals
March 11, 2021
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At a Glance
- As of March 9, 2021, the DHS public charge rule is no longer in effect.
- Adjustment of status applicants are no longer required to submit Form I-944 declarations of self-sufficiency and related documentation as of that date.
- Applicants for nonimmigrant changes of status and extensions of stay are no longer required to respond to questions about their receipt of public benefits.
- The change results from the Biden administration withdrawing its pending government appeals on challenges to the rule, therefore allowing a lower court order vacating the rule to take effect.
The issue
The Department of Homeland Security’s (DHS) 2019 public charge rule – which required petitioners and applicants for certain immigration benefits to disclose information concerning their receipt of public benefits and, for some, detailed financial information – is no longer in effect after the U.S. government withdrew its pending lawsuit appeals, and a lower court decision invalidating the rule was reinstated. As a result, the agency’s 1999 field guidance on public charge admissibility – the policy in place before the 2019 DHS public charge rule – is back in effect.
U.S. Citizenship and Immigration Services has confirmed that, as of March 9, 2021, foreign nationals no longer need to provide information solely required by the 2019 regulation. This means that applicants for adjustment of status to permanent residence are no longer obligated to submit Form I-944, the declaration of self-sufficiency, and related documentation. Likewise, applicants for nonimmigrant changes and extensions of status are not required to respond to questions about receipt of public benefits on Forms I-129, I-539 and I-539A. For affected applications and petitions pending on March 9, USCIS will not consider information solely required by the 2019 public charge regulation in adjudicating the case.
Background
On March 9, DHS Secretary Alejandro N. Mayorkas announced that the U.S. government will no longer defend the agency’s 2019 public charge rule in the various lawsuits pending across the United States. The agency stated that defending the rule is neither in the public interest nor an efficient use of limited government resources. The decision follows an early February Executive Order issued by President Biden that called for an immediate review of agency actions on public charge.
The government has been filing requests to dismiss all of its appeals of unfavorable lower court rulings on public charge around the country. Appeals in the U.S. Supreme Court and in the Seventh Circuit (Cook County et al. v Wolf et al. 19-cv-6334) are now dismissed.
1999 policy on public charge reinstated
Dismissal of DHS’s appeal in the Cook County case means that the final judgment of the lower court, which vacated the 2019 public charge rule, goes into effect. As a result, the DHS 1999 interim field guidance on the public charge inadmissibility provision -- the policy that was in place before the 2019 public charge rule -- is reinstated.
Under the 1999 guidance, “public charge” means a foreign national who has become or is likely to become primarily dependent on the U.S. government either by the receipt of cash assistance for income maintenance or by institutionalization for long-term care at U.S. government expense. Under this definition, DHS does not consider a person’s receipt of Medicaid or other non-cash benefits (except for use for long-term institutionalization) or of Supplemental Nutrition Assistance Program benefits (SNAP) as part of a public charge admissibility determination. Also, under the reinstated policy, the public charge inquiry is not applied to nonimmigrant extensions of stay and change of status applications.
Public charge review continues
DHS has stated that its review of public charge agency action continues, in consultation with other agencies, as required by President Biden’s February Executive Order. As a reminder, the State Department public charge rule is separately barred from enforcement. That rule applies to foreign nationals applying for visas from outside of the United States.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
