Public Charge Rule

Public Charge arrives with delay

Effective immediately, the U.S. Citizenship and Immigration Services (USCIS) is ending the Public Charge Rule, which was finalized by the former Trump administration in August 2019. Below we report on the state of affairs and the consequences for visa applicants.

 

Abolition of Public Charge

U.S. Citizenship and Immigration Services (USCIS) has permanently ended enforcement of Trump's Public Charge Rule for immigrants seeking federal assistance, effective immediately. This is the result of successful lawsuits challenging the final Public Charge Rule and the Biden administration's decision to cease government opposition to the lawsuits.

With the repeal of the 2019 Public Charge Rule, USCIS has now reverted to the application of the far less stringent Public Charge Rule established in the 1999 interim rule. In addition, the self-sufficiency requirement (Form I-944 Declaration of Self-Sufficiency) has been eliminated entirely.

Thus, USCIS will not apply the Public Charge Rule to cases decided on or after March 9, 2021 (regardless of when the case was filed).

Image of a USCIS decision

What was meant by Public Charge Rule?

Although the Public Charge approach goes back a long way, the Public Charge Rule introduced by the former Trump administration actually went far beyond the previous understanding of when a foreign person applying for a visa is or is likely to be a "burden on the public" (= Public Charge) under Section 212(a)(4) Immigration and Nationality Act (INA or the Act).

As early as 1882, the U.S. Congress introduced the possibility for the U.S. government to refuse to issue a U.S. visa if the beneficiary is likely to become dependent on government assistance. What is meant by the statement "is likely at any time to become a public charge" has been further defined under former US President Trump. This interpretation of the Public Charge Rule, or reliance on government benefits now or in the future, was very broad. This would have reduced the number of people eligible for green cards and other US visas.

Financial aid for living expenses and possible long-term care at the expense of the U.S. government played a role.

However, the Public Charge Rule was controversial from the beginning. The U.S. Department of Homeland Security (DHS) Final Rule Inadmissibility on Public Charge Grounds was not effective until February 24, 2020, instead of October 15, 2019, as planned, after being blocked by U.S. federal courts due to several injunctions. In addition, there were two nationwide injunctions due to the COVID-19 pandemic that again blocked the Public Charge Rule.

U.S. Immigration Regulations

In response to the Public Charge Rule, U.S. Citizenship and Immigration Services (USCIS) had published guidance on February 5, 2020, defining, among other things, the term "public charge" in inadmissibility determinations under INA 212(a)(4) and listing exempt applicants and types of public benefits or assistance considered in inadmissibility determinations and applications and petitions for extension of stay and change of status.

However, the injunction issued against the U.S. Department of Homeland Security prevented DHS from enforcing the Public Charge Rule during the national emergency due to the coronavirus.

U.S. Department of State Regulations

The U.S. Department of State (DOS) had published the DS-5540 Public Charge Questionnaire form in early 2020, which U.S. immigrant visa applicants in particular were required to complete. At the request of the U.S. consulate, nonimmigrant visa applicants could also be required to complete the DS-5540.

However, the court barred the U.S. State Department from applying its parallel Public Charge rules to visa applicants at U.S. embassies and U.S. consulates abroad during the Corona crisis.

Who was affected by the Public Charge Rule?

In the interim, the rule affected individuals who sought changes in their immigrant or nonimmigrant status within the United States through adjustment of status proceedings.

  1. Adjustment of Status (= Adjustment of Status),
  2. Change of Status, or
  3. extension of status (= Extension of Stay)

as the U.S. Department of Homeland Security is the responsible domestic authority.

Individuals applying for green cards and U.S. visas from outside the United States, and thus going through the consular process, have been affected by the DOS's parallel Pubic Charge regulations in the interim since the introduction of Application Form DS-5540. The U.S. consular officers decided on the day of the appointment which applicants had to additionally submit the form.

What changed when the Public Charge Rule went into effect?

Under the Final Rule, the USCIS had to consider factors such as

  • age,
  • health,
  • income,
  • education, and
  • abilities

to determine whether there is likely to be a financial burden on the public at any time.

Applicants had to show that they had not received certain government benefits (= public benefits) in excess of the specified threshold since obtaining nonimmigrant status, which they were seeking to extend or change. For purposes of Public Charge, a reason for exclusion was if individuals had received certain U.S. government benefits for a period of more than 12 months within the last three years. The following programs were considered:

  • Supplemental Security Income (SSI)
  • Temporary Assistance to Needy Families (TANF)
  • State or local general relief or general assistance
  • Institutionalization for long-term care
  • Medicaid
  • Supplemental Nutrition and Assistance Program (SNAP or food stamps)
  • Section 8 Housing Choice Voucher Program
  • Section 8 Project-Based Rental Assistance
  • Public Housing

USCIS, in accordance with the Public Charge Rule of 2019, accordingly issued new application forms that all applicants were required to use as of February 24, 2020. This affected nonimmigrant visa petitions in addition to numerous forms in immigrant visa or green card cases (I-140, I-130, I-485):

  • I-129 "Petition for a Nonimmigrant Worker"
    z. e.g. for L-1 and H-1B petitions
  • I-539 "Application To Extend / Change Nonimmigrant Status"
    i.e. status extensions and status changes

These forms must now still be updated accordingly by USCIS. In the meantime, USCIS will not deny any applications or petitions based on answers to Public Charge questions, even if those questions are left blank.

In the interim, anyone wishing to apply for a green card had to attach the now-abolished Form I-944 "Declaration of Self-Sufficiency" in addition to the many other forms already required as part of an adjustment application. The 18-page Form I-944 required a variety of information, such as personal assets, financial status, credit score, health insurance, and government benefits used.

Updated on 12.3.2021


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