Featured Issue: Public Charge Changes at USCIS, DOJ, and DOS

Resources related to the Trump administration’s proposed or enacted changes to how it handles the public charge ground of inadmissibility.


Current State of Play

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DHS Final Rule: USCIS will implement the public charge final rule starting on February 24, 2020, except for in Illinois. USCIS released a webpage providing information on how it plans to adjudicate applications for adjustment of status, extension of stay, and change of status for applicants and petitioners in Illinois.

DOS Interim Final Rule: On February 12, 2020, DOS issued notice of intent to seek emergency Office of Management and Budget (OMB) approval of proposed form DS-5540, Public Charge Questionnaire, by February 24, 2020, so that DOS can implement its interim final rule on the public charge ground of visa ineligibility on this date.

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AILA Quicktake #280: Update on the Public Charge Rule


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USCIS Efforts to Change Public Charge Rules

Public Charge Timeline Graphic

On August 14, 2019, USCIS published a final rule amending the regulations related to the public charge ground of inadmissibility. The rule was to take effect on October 15, 2019. Before the regulation took effect, several nationwide injunctions halted its implementation. On January 27, 2020, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against DHS’s public charge rule, allowing DHS to implement the public charge rule nationwide, except for Illinois, which has gained a statewide injunction of its own. On February 5, 2020, USCIS issued policy guidance, effective February 24, 2020, to address the implementation of the public charge final Rule, including guidance speciifc to Illinois.

These polices apply to immigrants applying for visas or green cards processed inside the United States, including immigrants that leave for 180 days or more and apply to reenter.

AILA Resources

AILA Statements

Government Announcements

On February 5, 2020, USCIS published revised forms consistent with the final rule on the public charge ground of inadmissibility. Beginning February 24, 2020, applicants and petitioners must use new editions of the following forms below (except in Illinois, where the rule remains enjoined by a federal court):

Form Current Version New Version USCIS Instructions
Form I-129, Petition for a Nonimmigrant Worker
  • USCIS will accept the 01/08/20 and 01/31/19 edition of this form if it is postmarked before February 24, 2020
  • USCIS will not accept the 01/08/20 and 01/31/19 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants with a physical address in Illinois
  • On or after February 24, 2020, USCIS will accept only the edition date: 01/27/20 of the Form I-129, except those submitted by petitioners/aliens with a physical address in Illinois.
I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker
  • USCIS will accept the 12/02/19 edition of this form if it is postmarked before February 24, 2020
  • USCIS will not accept the 12/02/19 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants with a physical address in Illinois.
  • On or after February 24, 2020, USCIS will accept only the edition date: 01/27/20 of the Form I-129CW, except those submitted by applicants with a physical address in Illinois.
I-485, Application to Register Permanent Residence or Adjust Status
  • USCIS will accept the 07/15/19 and 12/23/17 edition of this form if it is postmarked before February 24, 2020
  • USCIS will not accept the 07/15/19 and 12/23/17 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
  • On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-485, except those submitted by applicants/petitioners with a physical address in Illinois.
I-485 Supplement A, Supplement A to Form I-485, Adjustment of Status Under Section 245(i)
  • USCIS will accept the 07/15/19 and 12/23/17 edition of this form if it is postmarked before February 24, 2020
  • USCIS will not accept the 07/15/19 and 12/23/17 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
  • On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-485A, except those submitted by applicants/petitioners with a physical address in Illinois.
I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)
  • USCIS will accept the 07/15/19 and 12/23/17 edition of this form if it is postmarked before February 24, 2020
  • USCIS will not accept the 07/15/19 and 12/23/17 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
  • On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-485J, except those submitted by applicants/petitioners with a physical address in Illinois.
I-864, Affidavit of Support Under Section 213A of the INA
  • USCIS will accept the 3/6/18 edition of this form if it is postmarked before February 24, 2020
  • USCIS will not accept the 3/6/18 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
  • On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-864, except those submitted by applicants/petitioners with a physical address in Illinois.
I-864A, Contract Between Sponsor and Household Member
  • USCIS will accept the 3/6/18 edition of this form if it is postmarked before February 24, 2020
  • USCIS will not accept the 3/6/18 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
  • On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-864A, except those submitted by applicants/petitioners with a physical address in Illinois.
I-864EZ, Affidavit of Support Under Section 213A of the Act
  • USCIS will accept the 3/6/18 edition of this form if it is postmarked before February 24, 2020
  • USCIS will not accept the 3/6/18 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
  • On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-864EZ, except those submitted by applicants/petitioners with a physical address in Illinois.
I-912, Request for Fee Waiver
  • USCIS will accept the 3/13/18 edition of this form if it is postmarked before February 24, 2020
  • USCIS will not accept the 3/13/18 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
  • On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-912, except those submitted by applicants/petitioners with a physical address in Illinois.
I-601, Application for Waiver of Grounds of Inadmissibility
  • USCIS will accept the 12/2/19 edition of this form if it is postmarked before February 24, 2020
  • USCIS will not accept the 12/2/19 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
  • On or after February 24, 2020, USCIS will accept only the edition date: 1/27/20 of the Form I-601, except those submitted by applicants/petitioners with a physical address in Illinois.
I-539, Application To Extend/Change Nonimmigrant Status
  • USCIS will accept the 2/4/19 edition of this form if it is postmarked before February 24, 2020
  • USCIS will not accept the 2/4/19 edition if it is postmarked on or after February 24, 2020, except those submitted by applicants/petitioners with a physical address in Illinois.
  • On or after February 24, 2020, USCIS will accept only the edition date: 10/15/19 of the Form I-539 and I-539A, except those submitted by applicants/petitioners with a physical address in Illinois.
I-944, Declaration of Self-Sufficiency
  • Do NOT use this form if you live in Illinois.
  • Do NOT submit this form before February 24, 2020.
I-945, Public Charge Bond
I-356, Request for Cancellation of Public Charge Bond

  • USCIS Releases Information on Public Charge Inadmissibility Determinations in Illinois – February 5, 2020
  • USCIS Issues Policy Guidance on Public Charge Ground of Inadmissibility – February 5, 2020
  • USCIS Announces Public Charge Rule Implementation – January 30, 2020

    • USCIS announced that it will begin implementing the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on February 24, 2020.
    • The Final Rule will apply to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. For applications and petitions that are sent by commercial courier (e.g., UPS/FedEx/DHL), the postmark date is the date reflected on the courier receipt.
    • USCIS has clarified that it will not consider an individual’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before February 24, 2020 (instead of October 15, 2019), when deciding whether the alien is likely at any time to become a public charge under the Final Rule.
    • USCIS will post updated versions of Forms I-129, I-485 I-539, I-864, and I-864EZ and corresponding instructions, as well as Policy Manual guidance on www.uscis.gov during the week of February 3.
    • These updated forms must be used beginning February 24, 2020, otherwise applications and petitions using incorrect editions of the forms will be rejected.
    • USCIS plans to hold public engagement for immigration attorneys, industry representatives, and other relevant groups to discuss the final rule.
    • Note: The above guidance does not apply to applications or petitions filed in the State of Illinois, where the Final Rule remains enjoined as of January 30, 2020.
  • Posted to USCIS.gov on October 11, 2019:
  • Screenshot of Alert from USCIS.gov. ALERT: On Oct. 11, 2019, judges in three separate cases before U.S. District Courts for the Southern District of New York (PDF), Northern District of California (PDF), and Eastern District of Washington (PDF) enjoined DHS from implementing and enforcing the final rule related to the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act and postponed the effective date of the final rule until there is final resolution in the cases. Two of the injunctions are nationwide and prevent USCIS from implementing the rule anywhere in the United States.

Litigation

Advocacy Resources

Media Resources

DOS Efforts to Change Public Charge Rules

Public Charge Timeline Graphic

In January 2018, DOS revised the Foreign Affairs Manual (FAM) to instruct consular officers to consider a wider range of public benefits when determining whether visa applicants who have received or are currently receiving benefits are inadmissible on public charge grounds. In August, 2019, Politico reported on immigrant visa denials because the individual might become dependent on government benefits, finding that, "The number of public charge denials for applicants from all nations also rose during the past year. Preliminary data obtained by POLITICO shows 12,179 visa rejections on public charge grounds through July 29 — which puts the department on pace to surpass last year’s total. The State Department disqualified only 1,033 people on public charge grounds in fiscal 2016. Public charge denials have increased in recent years as the State Department has issued fewer immigrant visas overall."

On October 15, 2019, DOS issued an interim final rule to align DOS’s public charge standards with those of DHS. The interim final rule was to take effect at 12:00 am (ET) on October 15, 2019. But, DOS announced that it will not implement the interim final rule until the use of a new form for information collection is approved by OMB.

On October 24, 2019, DOS published in the Federal Register the DS-5540, Public Charge Questionnaire for public comment. Due to litigation related to the DHS final rule on public charge, DOS halted implementation. On February 12, 2020, DOS published in the Federal Register, DOS Notice of Intent to Seek Emergency OMB Approval of Public Charge Questionnaire, seeking emergency Office of Management and Budget (OMB) approval of proposed form DS-5540, Public Charge Questionnaire, by February 24, 2020, so that DOS can implement its interim final rule on the public charge ground of visa ineligibility on this date.

Government Announcements

Attorney Resources

Advocacy Resources

Litigation Resources

Media Resources

  • Politico: Exclusive: Visa denials to poor Mexicans skyrocket under Trump’s State Department - August 6, 2019
    • "Between Oct. 1 and July 29, the State Department denied 5,343 immigrant visa applications for Mexican nationals on the grounds that the applicants were so poor or infirm that they risked becoming a “public charge,” according to the statistics. That’s up from just seven denials for Mexican applicants in fiscal year 2016, the last full year under former President Barack Obama."

DOJ Efforts to Change Public Charge Rules

A new public charge rule for DOJ is expected to be published in the Federal Register, according to the Unified Agenda of the Office of Management and Budget (OMB). The rule has been at OMB since July 3, 2019.

This policy would apply to immigrants who have already been admitted to the United States.

Cite as AILA Doc. No. 19050634.