USCIS New Public Charge Rule
WHAT IS A PUBLIC CHARGE?
Individuals who are applying for green cards or other forms of permanent residency and citizenship must show that they will not be ‘public charges,’ i.e. that they are financially self-sufficient and will not rely solely on government benefits if they were to become a citizen. A finding that someone is or would likely be a public charge constitutes grounds for inadmissibility. While the requirement that an individual establish that they are not a public charge is not new, essentially it used to be a checklist of questions within the application. Questions included whether the applicant had ever applied for or received public assistance, was employed, was supporting children or other family members, etc. Now, however, this could change dramatically.
WHAT HAS BEEN PROPOSED BY USCIS
In 2018, the United States Citizenship and Immigration Services (USCIS) submitted a proposed rule outlining several changes to the public charge section of an immigration application. The final rule was published in August 2019, and was set to be enforced starting in October 2019.
Now the public charge inquiry requires the filing of an entirely separate application, called Form I-944 Declaration of Self-Sufficiency, which is an 18-page long form that also needs supplemental evidence to be filed along with it. The rule also raises the income, language, and wealth requirements for applicants who are seeking to become permanent residents.
The agency justification, in line with the objectives of the current administration, relied upon the principle that “self-sufficiency has long been a basic principle of U.S. immigration law since our nation’s earliest immigration statutes” in passing this new rule. The hope was to decrease reliance on public services, thereby ameliorating the financial strains arising from their issuance and regulation.
THE CURRENT STATE OF THE NEW PUBLIC CHARGE RULE
The new Public Charge rule was met with significant backlash and litigation. Several court cases were filed attempting to prevent USCIS from implementing the new rule. On July 29, 2020, the U.S. District Court for the Southern District of New York enjoined the Department of Homeland Security (DHS) from enforcing the public charge rule in light of the devastating global COVID-19 pandemic.
Then, on Sept. 11, 2020, the U.S. Court of Appeals for the Second Circuit granted a full stay of the July 29, 2020, injunction. This court decision essentially overturns the injunction and allows DHS to resume implementing the public charge final rule nationwide. It is critical to note that an appeal is pending, meaning the courts will have to re-evaluate the final rule and make a determination as to whether DHS can continue enforcing it.
WHAT THE NEW RULE COULD MEAN FOR THE FUTURE
If the public charge rule continues to be implemented, applications for Permanent Residence or Adjustment of Status will become significantly more expensive. Although the Form I-944 does not require a filing fee, due to the intensive inquiry required, immigration attorneys are charging more for the additional process of filing out and gathering evidence for the form.
It is also important to note that the new Public Charge rule could add additional time to the processing of your application. Be aware of all filing and other deadlines, and make sure that you give yourself – and your attorney – enough time to complete this new application.
Federal agencies often act on behalf of the administration in charge, since their Secretaries are directly appointed by the President. The operations of USCIS could change based on the outcome of the 2020 election, meaning their policies and procedures could change as well.
DOES THIS RULE APPLY OT YOU?
There are certain adjustment of status petitions that are exempt from filing Form I-944. If you are adjusting status based on one of the following petitions, then you do MAY NOT NEED to file Form I-944:
- VAWA self-petitioner
- Special Immigrant Juvenile
- Victim of qualifying criminal activity (U Nonimmigrant Visa)
- Victim of human trafficking (T Nonimmigrant Visa)
Several other petitions are excluded from the Public Charge ground. Carefully review the list of excluded categories on pages 1-2 of the Form I-944 here.
However, our recommendation is to speak to an experienced immigration attorney before making a decision as to whether to file or not the I-944 form.
Feel free to contact us with any questions you may have about the public charge grounds for inadmissibility, Form I-944, or any other immigration matters.
The USCIS website provides more information regarding the Public Charge grounds for inadmissibility and also posts current updates about the rule.
A downloadable and fillable PDF of form I-944 can be found here.