USCIS Resumes Nationwide Application of Public Charge Regulation

The issue

In the wake of the Second Circuit's September 11, 2020 decision to stay a limited injunction against the Department of Homeland Security public charge rule, U.S. Citizenship and Immigration Services (USCIS) today announced it will resume applying the regulation to affected adjustment of status applications and nonimmigrant extensions of stay and changes of status.

USCIS’s announcement follows a string of judicial rulings concerning enforcement of the public charge regulation. The rule is being challenged in several ongoing federal lawsuits. Separately, the State Department remains barred from enforcing its public charge regulation, which is applicable to foreign nationals applying for visas from outside of the United States.

Impact on adjustment applications

USCIS will once again require applicants for adjustment of status to submit Form I-944, the declaration of self-sufficiency, and related documentation, with a brief grace period through October 12, as follows:

• Adjustment filings received at USCIS before October 13: Adjustment applicants may continue to file Form I-485 without a Form I-944, Declaration of Self-Sufficiency, provided the case is received at USCIS before October 13, 2020. USCIS should not reject these cases, but will issue a Request for Evidence (RFE) for the Form I-944 and related documents. USCIS is also expected to issue public charge RFEs for adjustment cases that were filed between July 29 and September 22, 2020 and remain pending.
• Adjustments received at USCIS on October 13 or later: These filings will be rejected unless they include Form I-944 and related documentation or are exempt from the public charge regulation.
• Adjustments and nonimmigrant COS/EOS filings decided between July 29 and September 22, 2020: USCIS says it will not re-adjudicate applications or petitions that were approved between the July 29 district court injunction and today's notice.

As previously reported, USCIS fee increases and filing requirement changes are set to take effect on October 2nd. These changes affect adjustment of status applications and nonimmigrant extensions and changes of status. The agency has not yet released the new forms that accompany these changes, so there may be little to no lead time in order to prepare cases using the new forms and fees.

Impact on applications to change or extend nonimmigrant status

USCIS has not provided an explicit grace period for answers to public charge questions on extensions and changes of nonimmigrant status filed on Forms I-129, I-539 and I-539A. Petitioners and applicants seeking a nonimmigrant extension or change of status should respond to the public charge questions on the applicable forms beginning today. USCIS is expected to issue RFEs for public charge information in extension and status change cases filed between July 29 and September 22, 2020.

Fragomen is closely monitoring the status of the DHS public charge rule and will issue further client alerts 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.