Supreme Court Allows Public Charge Rule to Apply in Illinois, As State Department Readies Implementation of Similar Rule at U.S. Consulates

The issue

The U.S. Supreme Court ruled late Friday that the Trump Administration can enforce its new public charge regulation in Illinois, staying the last of several federal court injunctions that temporarily blocked the rule from taking effect. Though multiple lawsuits challenging the public charge rule are ongoing, the Court’s decision means that the rule can be implemented starting today in all 50 states.

What this means for employers and foreign nationals

Applicants for adjustment of status to permanent residence and nonimmigrant changes and extensions of status must comply with the new regulation if their filings are postmarked today or later.

Adjustment applicants submitting Form I-485 are required to complete a new Form I-944 Declaration of Self-Sufficiency and submit detailed documentation of their financial circumstances and other personal details.

Nonimmigrants seeking a change or extension of status on Form I-129 or Form I-539 — including H-1B cap changes of status — are required to disclose whether they have accepted or are certified to receive certain public benefits.

Adjustment applications postmarked before today are subject to the less stringent standards of USCIS’s prior public charge guidance. Nonimmigrant changes and extensions postmarked before today are not subject to public benefits disclosures.

Public charge rules for visa applicants at U.S. consulates

Though the DHS rule does not apply to visa applicants, the State Department may begin implementing its own new public charge standards at U.S. consulates as early as today, February 24.

Foreign nationals applying for immigrant visas, including diversity lottery visas, will be required to complete a new DS-5540 questionnaire, which collects information about an applicant’s income, financial assets and liabilities, health insurance coverage, and receipt of public benefits, among other questions. According to State Department policy guidance to consular officers, families applying together may submit only one DS-5540 per family unit, and supporting documentation will only be required at the discretion of the consular officer. Consular officers would have the discretion to require nonimmigrant visa applicants to complete the DS-5540 questionnaire.

Applicants who have not yet had their visa interviews could be asked to submit information or documentation pursuant to the new State Department public charge rule, including Form DS-5540. The State Department has advised consular officers that nonimmigrant visa applicants who will be in the United States for a relatively short duration are less likely to become public charges, particularly if admitted in a work-authorized status. This suggests that nonimmigrant visa applicants are less likely to be asked to disclose detailed financial information, unless there are factual circumstances that might lead a consular officer to exercise the discretion to require such information.

For detailed information about the new public charge requirements, please review Fragomen's FAQ. We are closely following implementation of the public charge rule 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.