BREAKING: Biden Administration Rescinds Public Charge Rule Effective Immediately

Happy Friday! We bring you an exciting new update about the public charge rule. On Thursday, March 11, 2021, the Biden administration formally rescinded the Trump era “public charge rule,” which has been responsible for causing great headaches among adjustment of status and immigrant visa applicants.

The public charge rule was first announced by the Department of Homeland Security on October 10, 2018, bringing with it a new set of regulations that made it more difficult for certain adjustment of status applicants to gain permanent residence in the United States.

Specifically, it was announced that the public charge rule would apply to all adjustment of status (green card) applications postmarked on or after February 24, 2020. In addition, the public charge rule of inadmissibility was applied to:

Applicants for an immigrant visa abroad
Applicants for a nonimmigrant visa abroad
Applicants for admission at the U.S. border who have been granted an immigrant or nonimmigrant visa, and
Nonimmigrants applying for an extension or change of status within the United States

Individuals applying for a green card or immigrant visa based on family sponsorship were most affected by this rule.

Further, a slew of special types of immigrants were allowed to be excluded from the rule including asylees, refugees, VAWA, TPS, DACA, Special Immigrant Juveniles, T nonimmigrants, U nonimmigrants, and such special types of immigrant classifications.

As a result of this rule, USCIS introduced a mandatory form to be submitted with all green card applications, known as Form, I-944 Declaration of Self Sufficiency, to determine whether a green card applicant would likely become a public charge on the United States government.

Summary of Public Charge Rule

Those who received any of the following types of benefits for more than 12 months in the aggregate within any 36-month period were found to be a public charge and ineligible for green cards:

Supplemental Social Security Income (SSI)
Temporary Assistance to Needy Families (TANF)
Medicaid
Non-Emergency Medicaid
Supplemental Nutrition and Assistance Program (SNAP)
Section 8 Housing Choice Voucher Program
Section 8 Project-Based Rental Assistance and
Certain other forms of subsidized housing.

In addition, the government introduced a “totality of the circumstances,” review of the applicant’s background to determine their likelihood of becoming a public charge. Among the factors considered by immigration was the applicant’s age, health, family status, assets, resources, financial status, education, and skills. No one factor was considered. Instead, the government looked at all of the applicant’s circumstances.

What does this rescission mean for me?

Following Biden’s entry to the Presidency, the Department of Homeland Security shifted its policies and made the decision to dismiss a Trump era appeal before the Seventh Circuit court that sought to maintain enforcement of the rule.

As a result, the federal courts have vacated the public charge rule, and DHS has rescinded its enforcement by the United States Citizenship and Immigration Services (USCIS) and the Department of State (DOS).

The vacatur took place on March 9, 2021. Since then, USCIS immediately stopped applying the 2018 public charge rule to all pending applications and petitions that would have been subject to the rule.

USCIS continues to apply the public charge inadmissibility statute, including consideration of the statutory minimum factors in the totality of the circumstances, in accordance with the 1999 Interim Field Guidance that was in place before the public charge rule was implemented.

However, 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.

What does this mean for me?

Effective immediately, applicants and petitioners no longer need to provide information or evidence related to the public charge rule.

As indicated by USCIS, applicants for adjustment of status should not submit Form I-944, Declaration of Self Sufficiency, or any evidence or documentation required by Form I-944 when they file their Form I-485.

Similarly, applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 or Form I-539.

What if I already submitted the public charge information to USCIS?

If an applicant or petitioner already provided information related to the public charge rule, and USCIS processes the application on or after March 9, 2021, USCIS will not consider any information that relates to the public charge rule, including, for example, information provided on Form I-944, evidence or documentation submitted with Form I-944, or information on the receipt of public benefits on Form I-129 or Form I-539.

What if I received a Request for Evidence or Notice of Intent to Deny based on the public charge rule?

If you received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information required under the public charge rule, including but not limited, to Form I-944, and your response is due on or after March 9, 2021, you do not need to provide that information.

However, applicants will need to respond to any portion or aspect of the RFE or NOID that has to do with your eligibility for immigration benefits.

Has USCIS issued guidance regarding the right forms to use?

USCIS plans to issue guidance regarding the use of affected forms very soon. They have announced that they 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.

Where can I find more information about the public charge rule?

You can find more information about the public charge rule right here on our blog.

Questions? If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.

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