3.16.21

For the last year, the fate of the Public Charge Rule, which expanded the ability of the U.S. Citizenship and Immigration Services to deny green cards to lower-income foreign nationals, has been uncertain. In addition to the possibility (now a reality) of a change in administrations, the rule had been challenged with some degree of success in the federal courts. The court decisions were stayed while the Trump DHS appealed or petitioned for Supreme Court review.

But that’s over now. On March 9, the Biden Administration dismissed its petitions for Supreme Court review and dismissed its appeal in another case. The U.S. Department of Homeland Security announced that continuing to defend the rule was “neither in the public interest nor an efficient use of limited government resources.” Then, on March 10, the USCIS announced that it would instead apply a 1999 Public Charge standard in adjudicating green card applications.

According to DHS Secretary Alejandro Mayorkas, “The 2019 public charge rule was not in keeping with our nation’s values. It penalized those who access health benefits and other government services available to them. Consistent with the President’s vision, we will continue to implement reforms that improve our legal immigration system.”

Background

The Public Charge Rule took effect in 2019 and has been subject to numerous challenges in the federal courts. Although the Rule was vacated or enjoined, the Trump DHS petitioned the U.S. Supreme Court to review two of those decisions -- one from the U.S. Court of Appeals for the Second Circuit, and one from the U.S. Court of Appeals for the Ninth Circuit. Meanwhile, the appellate courts stayed (paused) action while the DHS sought Supreme Court review. The Supreme Court agreed on February 22, 2021, to review the Second Circuit decision. But on March 9, the Biden DHS dismissed both petitions for review. (As of March 9, the Supreme Court had not yet decided whether to review the Ninth Circuit decision.)

Information regarding which states are in which federal circuits is available here.

Meanwhile, a federal court in the Northern District of Illinois had vacated the Public Charge Rule, but the U.S. Court of Appeals for the Seventh Circuit had stayed the district court’s order while the Trump DHS appealed. The Biden DHS dismissed the appeal, and the Seventh Circuit lifted the stay, on March 9, which means that the federal court’s order vacating the Rule is now in effect.

On March 15, 2021, the DHS and USCIS published a final rule that nullifies the 2019 Rule as of March 9, 2021. The agencies justify the retroactive nullification without notice or a period for comment as merely “implementing the judgment, i.e., the vacatur.”

What it all means

As of March 9, the DHS and USCIS will apply the interim guidance from 1999 instead of the 2019 Rule. Under the 1999 guidance, “the DHS will not consider a person’s receipt of Medicaid (except Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.” Moreover, “medical treatment or preventive services for COVID-19, including vaccines, will not be considered for public charge purposes.”

The “Public Charge” page on the USCIS website provides the following guidance for applicants and petitioners:

  • On or after March 9, 2021, applicants and petitioners should not provide information required solely by the [2019 Rule]. That means that applicants for adjustment of status should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with 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 has already provided such information, and USCIS adjudicates the application or petition on or after March 9, 2021, we will not consider any information provided that relates solely to the [2019 Rule], including, for example, information provided on the Form I-944, evidence or documentation submitted with Form I-944, and 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).
  • If you received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required by the [2019 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 the information solely required by the Public Charge Final Rule. However, you need to respond to the aspects of the RFE or NOID that otherwise pertain to the eligibility for the immigration benefit you are seeking. 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 send you another RFE or NOID.

(Emphasis added.)

What is now required to meet the public charge requirements?

For permanent resident applications adjudicated on or after March 9, the USCIS will apply the pre-2019 Public Charge requirements. These requirements apply almost exclusively to family-based immigration cases and focus primarily on the sponsor’s ability to support the applicant. Only the receipt by an applicant of public cash assistance or institutionalization for long-term care at government expense could be problematic. Generally, an applicant will meet the public charge requirements if his or her sponsor (typically the petitioner for the applicant) provides proof that the sponsor has sufficient income to support the applicant. A sponsor’s annual income or assets must be at least 125 percent of the U.S. Department of Health and Human Services poverty guidelines for the applicant’s state of residence.

For a printer-friendly copy, click here.

Practice Areas

Back to Page