Beware the Ides of March? Not in 2021. Spring has brought the immigration world some welcome relief. USCIS announced this month that the much-maligned Form I-944, Declaration of Self-Sufficiency, will no longer be required. The 2019 Public Charge Final Rule will no longer be applied to applicants for permanent residence as of March 9, 2021. Instead, USCIS will revert back to the public charge inadmissibility rules established by the 1999 Interim Field Guidance, which are largely applicable to family-based applications and centered primarily on the sponsor’s ability to support the applicant. In addition, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status.
“In other words,” the USCIS website reads, “USCIS is not considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.” The 2019 Public Charge Final Rule “was not in keeping with our nation’s values,’ said Secretary of Homeland Security Alejandro N. Mayorkas, and “it penalized those who access health benefits and other government services available to them.” The rule gave USCIS wide latitude to deny permanent residence to applicants found relying heavily on public benefits, and also to those who could potentially become a public charge.
Background
The 2019 Public Charge Final Rule, entitled Inadmissibility on Public Charge Grounds, was issued by U.S. Department of Homeland Security (DHS) in August 2019. Shortly thereafter it was preliminarily enjoined by courts in several states. Following a series of stays of those preliminary injunctions, DHS began applying the rule on February 24, 2020. Subsequently, preliminary injunctions against the rule were affirmed by the Second, Seventh, and Ninth Circuit Courts of Appeals.
On November 2, 2020, the U.S. District Court for the Northern District of Illinois issued a judgment vacating the rule on the merits, which would have effectively ended the rule. However, that decision was stayed in November 3, 2020 by the Seventh Circuit.
On March 9, 2021, the U.S. Court of Appeals for the Seventh Circuit lifted its stay of the Illinois decision vacating the 2019 Public Charge Final Rule nationwide. The Biden administration decided not to defend the rule, and the Department of Justice dismissed its pending appeals in the Supreme Court and Seventh Circuit.
Effect of the Vacatur
Form I-944. The most immediate and welcome change is the elimination of Form I-944, Declaration of Self-Sufficiency. This form was required of all green card applicants (minors included) to demonstrate that they were not likely to become a public charge. The form required information about assets, financial resources, credit scores, tax returns, investments, debts, health insurance, history of public benefits, education and language skills. USCIS will no longer use this information unless specifically relevant under the Pre-2019 Public Charge Final Rule standard.
Form I-129. This form is used by an employer to petition USCIS for a foreign national to come temporarily to the United States as a nonimmigrant to perform services or labor, or to receive training. It is also used by employers to apply for extensions of stay and changes of status on behalf of nonimmigrants. USCIS is removing the public benefit condition information collection elements from the form, therefore as a condition of granting extension of stay and change of status, the applicant will no longer be required to show that he or she has not received public benefits since obtaining the nonimmigrant status he or she is seeking to extend or change. Petitioners no longer need to provide information related to the receipt of public benefits in Part 6 of this form.
Form I-539. Also affected is Form I-539, which is used by certain nonimmigrants to apply for an extension of stay or change of status, and in circumstances, to obtain initial nonimmigrant status. As a condition of granting an extension of stay and/or change of status, the applicant no longer has to show that he or she has not received public benefits. Applicants no longer need to provide information related to the receipt of public benefits in Part 5 of this form, nor Part 3 of Form I-539A.
Pending Cases
Pursuant to the new USCIS guidance, if an applicant or petitioner already provided information related solely to the Public Charge Final Rule, and USCIS adjudicates the application or petition on or after March 9, 2021, USCIS will not consider any information that relates solely to the 2019 Public Charge Final Rule. Any other information received will be evaluated consistent with the statute, regulations, and policies in effect at the time of adjudication.
Applicants who have received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required under the Public Charge Final Rule, do not need to provide that information. However, they do need to respond to the aspects of the RFE or NOID that otherwise pertain to the eligibility for the immigration benefit sought.
USCIS will be issuing additional guidance regarding the use of affected forms. Meanwhile, it will not reject any Form I-485 based on the inclusion or exclusion of Form I-944, and will not reject Form I-129 or Form I-539 based on whether the public benefits questions have been completed or left blank.
ABOUT THE AUTHOR
Matthew Martinez is a Member in Dickinson Wright’s Phoenix office. He can be reached at 602-285-5056 or mmartinez@dickinsonwright.com.