The US Supreme Court ruled on January 27 that the administration can begin to implement the public charge rule while the issue is still being litigated in the federal court system. The public charge rule increases the scrutiny on applicants for immigration benefits, and presumes that even temporary reliance on public assistance may render an applicant inadmissible to the United States, while also broadening the categories of public assistance that could lead to a finding of inadmissibility.
Following the US Supreme Court’s ruling to stay an injunction that blocked the enforcement of the new public charge rule, the US Citizenship and Immigration Services (USCIS) will begin implementing the new public charge rule on February 24, 2020, except in Illinois, where the rule remains enjoined statewide by a federal court. USCIS will post updated forms, submission instructions, and policy manual guidance on its website the week of February 3, 2020. Applications and petitions postmarked on or after February 24, 2020, will be subject to the new rule and only the updated forms will be accepted after this date.
The rule will not have retroactive effect. In other words, a foreign national’s application for certification or approval to receive, or receipt of, certain noncash public benefits before February 24, 2020, will not be considered during the adjudication of their adjustment of status to lawful permanent residence application or for a change or extension of temporary nonimmigrant status. Continuing timely guidance from USCIS is crucial to clarify how the new public charge rule will be implemented going forward.
The public charge rule, originally due to take effect on October 15, 2019, also introduced a new US Citizenship and Immigration Services (USCIS) form, Form I-944, Declaration of Self Sufficiency. With this decision from the Supreme Court, the October 2019 injunction issued by the US District Court for the Southern District of New York has been lifted, and the administration may now implement the public charge rule as originally intended. We will provide further updates once USCIS updates its website to reflect this decision.
Employers sponsoring foreign national employees for nonimmigrant visas or US permanent residence may want to ensure that these employees are familiar with the list of public benefits that may result in a finding of “public charge” inadmissibility. In addition, it is important to consider that the new Form I-944, Declaration of Self Sufficiency, will require significant preparation time to ensure that it is properly completed and has the appropriate supporting documentation.
If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:
Laura C. Garvin