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Immigration Law Blog

Wednesday, October 16, 2019

Public Charge Ground of Admissibility Postponed

Update - effective October 11, 2019, the U.S. District Court of the Southern District of New York prohibited the USCIS and Department of Homeland Security (DHS) from enforcing the DHS Public Charge Final Rule, specifically preventing the implementation of any new or updated forms that would be required under the Final Rule, including: Forms I-129 (Petition for a Nonimmigrant Worker), I-485 (Application to Register Permanent Residence or Adjust Status), I-539 (Application to Extend/Change Nonimmigrant Status), I-864 (Affidavit of Support), I-864 EZ (Affidavit of Support Under Section 213A of the Act), I-944 (Declaration of Self-Sufficiency), and Form I-945 (Public Charge Bond).  The newer Forms I-944 and I-945, produced exclusively for use in connection with the Public Charge Inadmissibility Law, were removed from the USCIS website shortly after this injunction.

For more information, visit https://www.uscis.gov/legal-resources/final-rule-public-charge-ground-inadmissibility.

 

Original post dated August 28, 2019:

Final USCIS Rule Enforces Long-Standing Public Charge Inadmissibility Law

On August 12, 2019, the U.S. Department of Homeland Security (DHS) announced a final rule defining a long-standing law that ensures immigrants in legal temporary or permanent status (seeking to enter and remain in the U.S.) are able to rely on their own capabilities and the resources of family members, sponsors, and private organizations instead of public resources.

The final rule, an amendment to DHS regulations, includes changes/additions such as specifying how DHS will establish the inadmissibility of an alien to the United States based on the probability of the alien becoming a public charge in the future.  It will also make nonimmigrant aliens who have received certain public benefits above a specific limit after obtaining the nonimmigrant status they seek to extend, or from which they seek to change, ineligible for extensions of stay and change of status.

Furthermore, to ensure that subjected applicants are self-sufficient, the definition of “public charge” - a person receiving one or more designated public benefits for more than 12 months collectively within a 36-month period (receipt of two benefits in one month counts as two months) - has been revised by DHS to contemplate various additional kinds of public benefits received, including:

• Any type of cash benefit for income maintenance;
• Supplemental Security Income (SSI);
• Temporary Assistance to Needy Families (TANF);
• Supplemental Nutritional Assistance Program (SNAP);
• Medicaid (certain categories); and
• Housing programs (certain categories).

Please note that the regulation excludes from the public benefits definition public benefits received by the following: individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces and their spouses and children; certain international adoptees and children acquiring U.S. citizenship; aliens under 21 and pregnant women receiving Medicaid and those receiving emergency Medicaid medical services; and individuals receiving school-based services (including services provided under the Individuals with Disabilities Education Act).

The regulation also excludes and does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners) and others. 

The final rule, which will go into effect at midnight on October 15, 2019, supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds and will be applied only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date.  Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on the 1999 Interim Guidance.   

For more information on the final rule as well as benefits included and excluded in the public charge inadmissibility rule, visit https://www.uscis.gov/legal-resources/final-rule-public-charge-ground-inadmissibility



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