On March 9, 2021, USCIS announced that it is no longer applying the Department of Homeland Security (DHS)’s August 2019 Final Rule entitled Inadmissibility on Public Charge Grounds (“2019 Public Charge Final Rule”) and concluded that the rule is neither in the public interest, nor an efficient use of limited government resources. Therefore, an applicant who files a Form I-485, Application for Adjustment of Status is no longer required to submit Form I-944, Declaration of Self Sufficiency, or any evidence or documentation required by Form I-944 with their Form I-485 application. This announcement also results in nonimmigrant applicants, petitioners and beneficiaries no longer having to answer the public charge questions on Form I-129, Petition for a Nonimmigrant Worker, Form I-539, Application To Extend/Change Nonimmigrant Status and Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status.
On August 14, 2019, DHS published the 2019 Public Charge Final Rule under INA §212(a)(4). For details please see our August 22, 2019 alert. The new rule expanded the definition of public charge to include a noncitizen who receives a specified public benefit for more than 12 months in the aggregate (i.e. two benefits in one month would count as two months) within any 36-month period. Public benefits listed in the rule were:
On February 24, 2020, the DHS implemented the 2019 Public Charge Final Rule to be applied to any I-485 application submitted to USCIS on or after that date and to nonimmigrant cases subject to the rule.
On August 5, 2020, the U.S. District Court for the Southern District of New York issued an order enjoining the government from enforcing the 2019 Public Charge Final Rule as a result of the COVID-19 pandemic national health emergency. For details please see our August 5, 2020 alert.
On November 2, 2020, the U.S. District Court for the Northern District of Illinois vacated, nationwide, the 2019 Public Charge Final Rule. For details please see our November 2, 2020 alert. This meant that the DHS could no longer apply the rule to I-485 applications and nonimmigrant applications subject to the rule. However, the following day, the United States Court of Appeals for the Seventh Circuit issued an administrative stay on the lower court’s decision to vacate the 2019 Public Charge Final Rule. As a result, Adjustment of Status applicants resumed submitting Form I-944 with their applications and nonimmigrant applicants were again subject to the public charge requirements. For details please see our November 4, 2020 alert.
On February 2, 2021, the President issued Executive Order 14012 which directed the Secretary of Homeland Security to review the actions related to the implementation of the public charge ground of inadmissibility. As part of its review, on March 9, 2021, the DHS announced that it will no longer defend the 2019 Public Charge Final Rule in the various lawsuits pending across the United States. It stated that the Department of Justice will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 Public Charge Rule and filed a joint motion to dismiss its pending appeals in the Supreme Court and various Circuit Courts, all of which have been granted. On the same day, the U.S. Court of Appeals for the Seventh Circuit lifted its stay and the final judgement from the U.S. District Court for the Northern District of Illinois vacating the 2019 Public Charge Final Rule went into effect.
This USCIS announcement means that on or after March 9, 2021, the 2019 Public Charge Final Rule no longer applies to all pending applications and petitions that were subject to the rule. Applicants who file I-485 Adjustment of Status applications are no longer required to submit Form I-944 or any evidence or documentation required by Form I-944 at the time they file their applications. 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 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).
USCIS will issue additional guidance regarding the use of affected forms. Until then, USCIS will not reject any Form I-485 based on the inclusion or exclusion of Form I-944. USCIS will not reject Form I-129, Form I-129CW, Form I-539, or Form I-539A based on whether the public benefits questions have been completed or left blank.
If an Request for Evidence (RFE) or Notice of Intent to Deny (NOID) is received requesting information that is solely based on the requirement of the 2019 Public Charge Final Rule, including but not limited to Form I-944, and the response is due on or after March 9, 2021, applicants do not need to provide such information. However, applicants are still required to respond to the aspects of the RFE or NOID that otherwise pertain to the eligibility for the immigration benefit applicants are seeking.
As a result of this announcement, the 1999 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds (i.e. the policy in place prior to the 2019 Public Charge Final Rule) is now in effect which reinstates a totality of the circumstances standard to public charge considerations. For example, under the 1999 Field Guidance, the use of Medicaid, CHIP, or other supportive programs is not considered in public charge determinations, with the exception of the use of Medicaid for long-term institutional care. Also, under this guidance, the definition of “Public Charge” reverts to “an alien who has become or who is likely to become primarily dependent on the government for subsistence either by the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.” The 1999 Field Guidance specified “officers should not place any weight on the receipt of non-cash public benefits other than institutionalization or the receipt of cash benefits for purposes other than for income maintenance.”
The removal of the 2019 Public Charge Final Rule is consistent with the Biden administration’s immigration reform objectives. It is USCIS’ view that reverting to the prior public charge guidance allows for a more holistic analysis regarding those who may become dependent on the government for subsistence, a standard less likely to penalize foreign nationals who access health benefits and other government services. It also will eliminate, for your foreign national employees, the administrative burden and voluminous document collection that came with filing Form I-944 applications with their I-485 Adjustment of Status applications.
PwC Law will prepare applications and petitions according to the guidance provided and will await further guidance from USCIS on the use of the affected forms. For more information on this, or any other immigration matter, please contact a member of our team at PwC Law LLP.