The Latest on Rules to Bar Immigration based on Public Charge
We previously discussed the new Public Charge Rule that was initially set to take effect on Oct.15, 2019 but blocked by Federal Court injunctions. Another major development took place on Jan. 27, 2020 when the U.S. Supreme Court issued a 5-4 decision to stay the current nationwide injunction of the rule. With that, the Trump administration has moved forward with enforcing a rule that will greatly expand the ability for immigration officials to deny entry or legal status to individuals that that are likely to become a “public charge.” Green card processing for elderly parents of U.S. citizens is of particular concern.
The history surrounding the rule has had many twists, turns and uncertainties. The key initial development occurred in August 2019 when the U.S. Department of Homeland Security (DHS) published a final rule on inadmissibility based on public charge grounds. The new rule set out to drastically expand the definition of “public charge” and integrate a wider range of public benefit programs that could lead to public charge concerns and ultimately a determination of inadmissibility. The new rule defines “public charge” and “public benefit” by using a totality of circumstances approach for making a public charge inadmissibility determination that weighs the foreign national’s age, health, family status, education and skills, assets, resources and financial status, taking into account a broad range of positive and negative factors. However, as the October 2019 implementation date approached, there was wide-spread uncertainty as to how the new rules would actually be implemented, particularly as U.S. Citizenship and Immigration Services (USCIS) had yet to finalize and publish revised immigration forms such as the I-129, I-539 and I-864 as well as the brand new form I-944 Declaration of Self-Sufficiency that would be used to collect the public benefit information. USCIS finally released the new version of forms on Oct. 9, 2019, just three weekdays before the new rule was set to take effect, causing great consternation to employers, applicants and practitioners alike as everyone sought to digest the new information being requested and potential impacts.
However, the U.S. District Courts for the Southern District of New York, Northern District of California, Eastern District of Washington, Northern District of Illinois and District of Maryland all acted quickly and ordered that DHS could not implement and enforce the final rule. The effective date of the final rule was also postponed until a resolution on the cases was finalized.
Following the Supreme Court decision, the administration quickly moved forward with implementing the rule while the underlying litigation continues, at least temporarily. Even the one exception for in Illinois was lifted by the U.S. Supreme Court on Feb. 21, 2020.
USCIS has now published revised forms related to the final rule on the public charge ground of inadmissibility, which the U.S. Department of Homeland Security, including USCIS, implemented on Feb. 24, 2020. All applicants and petitioners must use new editions of the forms listed in a USCIS announcements on its website at www.uscis.gov.
Applicants for adjustment of status subject to the public charge ground of inadmissibility and the final rule must also submit Form I-944, Declaration of Self-Sufficiency.
Certain classes of aliens (such as refugees, asylees, petitioners under the federal Violence Against Women Act, and certain T and U visa applicants) are exempt from the public charge ground of inadmissibility and therefore are not subject to the new rule.
These new provisions have also been implemented with immediate effect by the State Department at all consulates abroad. Family Based immigration processing – especially for parents of US citizens is likely to be significantly impacted going forward. The Form I-864 affidavit of support is no longer sufficient on its own to overcome the public charge ground for refusals of immigrant visas. The latest guidance states that consular officers must consider whether the applicant's age makes the applicant more likely than not to become a public charge at any time in the future. More specifically, if the applicant is at or above the early retirement age (currently 62), they must consider it a negative factor in the totality of the circumstances if the evidence reflects that the applicant's age adversely affects the applicant’s ability to obtain or perform work, or may increase the potential for healthcare related costs that would be borne by the public. It remains to be seen how the consulates will adjudicate applications going forward.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email email@example.com