Public Charge Rule to Take Effect on February 24

The issue

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.

Though several federal courts had temporarily enjoined the regulation nationwide, a Supreme Court ruling issued Monday permits the Department of Homeland Security (DHS) to implement the regulation while those lawsuits continue. DHS will implement the regulation in all states but Illinois, where a more limited injunction against the rule remains in place.

The USCIS announcement 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 new effective date, 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 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.

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 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.

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 public charge affects visa applicants

The State Department has finalized its own public charge regulation for immigrant and nonimmigrant visa applicants, but has not yet implemented it.

A presidential proclamation requiring immigrant visa applicants to demonstrate that they will have health insurance within 30 days after entry to the United States, or the means to pay for reasonably foreseeable medical expenses, has been blocked by a federal court injunction.

What’s next in implementation of the DHS public charge regulation

USCIS is expected to issue new and updated adjustment of status and nonimmigrant petition forms that incorporate the new requirements. Until February 24, the current editions of Forms I-129, I-485, I-539, I-864 and I-864A will be accepted. As of February 24, USCIS will reject any such filings not submitted on the forthcoming revised forms.

USCIS is expected to hold public engagements on the new public charge requirements in the coming weeks.

Fragomen is monitoring implementation of the public charge regulation, and will provide updates as USCIS provides guidance.

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