U.S. Citizenship and Immigration Services (USCIS) announced last week that it will implement the Inadmissibility on Public Charge Grounds final rule (“the Public Charge Rule” or the “Final Rule”) on February 24, 2020, except for in the State of Illinois where the rule remains enjoined by a federal court as of January 30, 2020. This comes as a result of the January 27, 2020 Supreme Court decision in DHS vs. New York which granted the administration’s request for a stay of the nationwide injunction against the Department of Homeland Security’s (DHS) public charge rule, allowing DHS to implement the public charge rule nationwide, except for Illinois.
The Public Charge Rule will apply to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. For applications and petitions that are sent by commercial courier (e.g., UPS/FedEx/DHL), the postmark date is the date reflected on the courier receipt. USCIS has clarified that it will not consider an individual’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before February 24, 2020, when deciding whether the alien is likely at any time to become a public charge under the Final Rule.
USCIS will post updated versions of Forms I-129, I-485 I-539, I-864, and I-864EZ and corresponding instructions, as well as Policy Manual guidance on www.uscis.gov during the week of February 3. These updated forms must be used beginning February 24, 2020, otherwise applications and petitions using incorrect editions of the forms will be rejected. The Final Rule will have sweeping implications on routine petitions for nonimmigrant work visa status as well as applications for adjustment of status to permanent residence, i.e. green card applications.
On August 14, 2019, USCIS initially published the Public Charge Rule which broadened the definition of what makes someone likely to become a “public charge” and therefore ineligible for a green card in the eyes of the government. Historically, USCIS has considered an alien’s age, health, income, education and skills, as well as the income of the sponsoring U.S. family member (if any) in order to determine whether the alien is likely at any time to become a public charge. The Final Rule will continue to consider these factors and specifies new factors that will weigh against a foreign national in determining whether they are likely to be a public charge. Notably, receipt of non-cash government assistance programs like Medicaid and the Supplemental Nutrition Assistance Program (SNAP), which are generally available to undocumented foreign nationals, will be considered as negative factors. Additional public benefits that will be considered as negative factors include Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), Section 8 Housing Assistance, Section 8 Project-Based Rental Assistance, and public housing programs.
As a result of the Final Rule, individuals applying for adjustment of status to lawful permanent resident will now be required to provide extensive financial documentation, including credit reports, to establish that they will not become a public charge in the future. Moreover, applicants may be subject to ongoing credit checks while their applications are pending, over months, and in many cases, years.
What will be the impact of this new rule? Foreign nationals and their employers should expect that it will take longer to analyze, prepare and file applications given the scope of the new public charge inquiry and the increased documentation that will required. While debatable, we may begin to see sharp increases in denials of lawful permanent resident applications with a disproportional effect on communities of immigrants from lower socioeconomic backgrounds, who are much more likely to make use of the public benefits programs specified by the Final Rule. The Final Rule could also very likely discourage current immigrants from making use of these programs, even when they are receiving the benefits for a U.S citizen relative, such as their minor child, out of fear that the receipt of these benefits will count against them in the future when attempting to adjust to permanent resident status.
The Final Rule does not impact those who already have a green card, as the public charge deportability grounds are enforced through separate legal provisions that are not altered by this rule. Finally, we note that presently this expanded public charge analysis is being implemented solely in the United States by USCIS and does not apply to immigrant visa application at U.S. consular posts abroad. However, a new Public Charge Questionnaire to be used at U.S. consular posts abroad is now under public comment and could be implemented this year.
Lepore Taylor Fox attorneys are actively monitoring this topic and will be working with clients to prepare for these substantial changes.
 The public charge condition applicable to nonimmigrants seeking a change or extension of status is markedly different than the public charge standard that DHS will apply to applicants for adjustment of status or admission who are subject to the public charge ground of inadmissibility. To the latter, DHS will administer a “totality of circumstances” test, featuring a range of negative and positive factors, to determine whether those applicants are “likely at any time to become a public charge”. As such, that test is a future-looking, multi-factor one. The public charge condition imposed on applicants for a change or extension of nonimmigrant status looks only to past receipt of public benefits, considering whether the alien has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they wish to extend or change, up until the time of adjudication of the extension of stay or change of status request.
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