Public charge rule takes effect next week

18 Feb 20

UNITED STATES

The Department of Homeland Security will implement its public charge rule Feb. 24. The rule makes applicants for permanent residence and changes or extensions of status within the U.S. subject to significantly greater scrutiny regarding their use or potential use of public benefits.

Key points:

  • Starting next Monday, employers will no longer be able to file the current version of Forms I-129, I-485, I-539, I-539A and I-864. Filings postmarked before Feb. 24 will not be subject to the rule.
  • Beginning next Monday, adjustment of status (green card) applicants must submit a new form (Form I-944 Declaration of Self-Sufficiency) and supporting documentation to demonstrate that they will not become a public charge in the future under the regulation’s expanded definitions.
  • The new forms require that nonimmigrant workers requesting a change of status or extension of status attest that they have not received public benefits, as defined in the regulation, since obtaining their nonimmigrant status; they do not need to prove that they will not become a public charge in the future.
  • The rule will take effect in all states except for petitioners and applicants in Illinois, where the rule remains subject to a federal court injunction, though the government has asked the Supreme Court to lift the Illinois injunction as well.

Background: DHS published a public charge rule last year that was supposed to take effect in October, but several courts enjoined implementation temporarily while the lawsuits progressed. Last month, the Supreme Court lifted the injunctions, except for a state-wide injunction in Illinois, allowing DHS to implement the rule during litigation. DHS announced earlier this month that the rule will take effect Feb. 24. The Supreme Court did not rule on the legality of the public charge regulation, and the lawsuits challenging it will continue to progress.

The State Department is currently seeking emergency approval of a new questionnaire that will allow it to implement its own version of the public charge rule, which will apply to visa applicants applying at U.S. consulates overseas. That rule would require visa applicants outside the U.S. to complete a lengthy visa questionnaire about their finances and other factors. The State Department is hoping to get approval from the Office of Management and Budget in time to implement the rule in concert with DHS on Feb. 24, but the questionnaire has not yet been approved.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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