Public Charge Rule back On – For Now

On November 3rd. 2020 we informed you that there was a News Update that The government CANNOT apply the new public charge rules anywhere in the United States or abroad because on November 2, 2020, a federal district court vacated the new Department of Homeland Security (DHS) public charge rule. This meant that as of November 2, 2020, U.S. Citizenship and Immigration Services (USCIS) could not apply the new rule or require the use of the new Form I-944.

One day after, all this changed abruptly.

Current Status

As of November 4, 2020, USCIS will apply the Public Charge Final Rule to all applications and petitions postmarked or submitted electronically on or after Feb. 24, 2020, including pending applications and petitions. If you send your application or petition by commercial courier (for example, UPS, FedEx, or DHL), we will use the date on the courier receipt as the postmark date. We will not re-adjudicate applications or petitions approved in the period after the Nov. 2 order by the U.S. District Court for the Northern District of Illinois to vacate the Public Charge Final Rule and before the administrative stay was issued on Nov. 3.

Filing

If your Form I-485, Application to Register Permanent Residence or Adjust Status, is postmarked on or after Feb. 24, 2020, you may be required to file Form I-944, Declaration of Self-Sufficiency. USCIS will reject your Form I-485 if you do not include the required forms and evidence with Form I-485 at the time of filing.

USCIS will also ask for any missing evidence for Form I-129, Petition for a Nonimmigrant Worker; Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker; Form I-539, Application to Extend/Change Nonimmigrant Status; and Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status.

History of Court Decisions

On Nov. 3, 2020, the U.S. Court of Appeals for the Seventh Circuit issued an administrative stay of the U.S. District Court for the Northern District of Illinois’ Nov. 2, 2020, decision that vacated the DHS Inadmissibility on Public Charge Grounds Final Rule. This administrative stay allows DHS to resume implementing the Public Charge Final Rule nationwide. As of Nov. 4, 2020, USCIS will adjudicate applications and petitions postmarked (or electronically submitted, if applicable) on or after Feb. 24, 2020, under the Public Charge Final Rule.

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On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois found the Public Charge Final Rule procedurally and substantively invalid under the Administrative Procedure Act and vacated the Public Charge Final Rule nationwide effective Nov. 2, 2020, and USCIS immediately stopped applying the Public Charge Final Rule to all applications and petitions that would have been subject to it. Instead, USCIS applied the 1999 public charge guidance that was in place before the Public Charge Final Rule was implemented on Feb. 24, 2020, to the adjudication of any application for adjustment of status that was pending or received Nov. 2-3, 2020. In addition, on Nov. 2-3, 2020, USCIS adjudicated any application or petition for extension of nonimmigrant stay or change of nonimmigrant status pending or received on Nov. 2 or Nov. 3, 2020, consistent with regulations in place before the Public Charge Rule was implemented; in other words, the public benefit condition was not applied.

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On Sept. 11, 2020, the U.S. Court of Appeals for the Second Circuit, in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, granted a full stay of the July 29, 2020, injunction pending the government’s appeal. This full stay allows DHS to resume implementing the Public Charge Final Rule nationwide, including in New York, Connecticut and Vermont. USCIS did not re-adjudicate any applications and petitions that were approved following the issuance of the July 29, 2020, injunction continuing until Sept. 22, 2020.

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On Aug. 12, 2020, the U.S. Court of Appeals for the Second Circuit, in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, granted a temporary stay of the July 29, 2020, nationwide injunction in all states outside of the Second Circuit (that is, all states except New York, Connecticut, and Vermont).

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On July 30, 2020, we announced that we would apply the 1999 public charge guidance when adjudicating any application for adjustment of status on or after July 29, 2020, and while the injunction was in place. We also announced that we would use the regulations that were in place before the Public Charge Final Rule was implemented on Feb. 24, 2020, to adjudicate applications and petitions for extension of nonimmigrant stay and change of nonimmigrant status (that is, we would not apply the public benefit condition while the injunction remained in place).

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On July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY), in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, et al., enjoined DHS from enforcing, applying, implementing, or treating as effective the Public Charge Final Rule during a declared national health emergency. The decision was issued during the COVID-19 outbreak. (84 FR 41292, Aug. 14, 2019, final rule; as amended by 84 FR 52357, Oct. 2, 2019, final rule correction.)

Source: USCIS