TRUMP'S "PUBLIC CHARGE" REGULATIONS VACATED
Since President Biden was sworn in early this year, there have been questions as to what would become of former President Trump's recent "Public Charge" rules [(84 Fed. Reg. 41,292 (Aug. 14, 2019)), as amended by Inadmissibility on Public Charge Grounds; Correction, 84 Fed. Reg. 52,357 (Oct. 2, 2019) (Public Charge Final Rule)] which sought to add financial and other barriers to the ability of non-citizens to adjust to permanent residence, or immigrate to the United States. In addition to (with some exemptions) considerations of the non-citizen's finances, education, whether said non-citizen had ever received certain forms of public assistance, Trump's Public Charge regulation allowed immigration adjudicators to consider the "totality of the circumstances" which could include non-citizens age and health in the evaluation of whether to grant or deny lawful permanent residence.
Non-citizens considering adjustment of status or immigration to the United States will be relieved that USCIS is acknowledging the rescission of these onerous requirements as follows:
USCIS is no longer applying the August 2019 Public Charge Final Rule. As a consequence, among other changes, USCIS will apply the public charge inadmissibility statute consistent with the 1999 Interim Field Guidance. In other words, USCIS is not considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.
Background
On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Inadmissibility on Public Charge Grounds final rule (84 Fed. Reg. 41,292 (Aug. 14, 2019)), as amended by Inadmissibility on Public Charge Grounds; Correction, 84 Fed. Reg. 52,357 (Oct. 2, 2019) (Public Charge Final Rule) nationwide. That decision was stayed by the U.S. Court of Appeals for the Seventh Circuit.
On March 9, 2021, the Seventh Circuit lifted its stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. When the vacatur went into effect, USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. USCIS continues to apply the public charge inadmissibility statute, including consideration of the statutory minimum factors in the totality of the circumstances, in accordance with the 1999 Interim Field Guidance that was in place before the Public Charge Final Rule was implemented. In addition, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status.
Applicants and petitioners should not provide information or evidence related solely to the Public Charge Final Rule. That means that applicants for adjustment of status should not submit Form I-944, Declaration of Self Sufficiency, or any evidence or documentation required by Form I-944 when they file their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).
If an applicant or petitioner already provided information related solely to the Public Charge Final Rule, and USCIS adjudicates the application or petition on or after March 9, 2021, USCIS will not consider any information that relates solely to the Public Charge Final Rule, including, for example, information provided on Form I-944, evidence or documentation submitted with Form I-944, or information on the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3). Any other information received will be evaluated consistent with the statute, regulations, and policies in effect at the time of adjudication.
If you received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required under the Public Charge Final Rule, including but not limited, to Form I-944, and your response is due on or after March 9, 2021, you do not need to provide that information. However, you do need to respond to the aspects of the RFE or NOID that otherwise pertain to the eligibility for the immigration benefit sought. If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and consistent with the 1999 Interim Field Guidance, we will issue another RFE or NOID.
USCIS published new form editions for affected forms. Starting April 19, 2021, we will only accept the 03/10/21 editions. Until then, you can also use the prior editions specified on each form webpage.
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