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On March 9^th, 2021, the Biden Administration sought to finalize the rule concerning public charge inadmissibility. Public charge inadmissibility refers to an individual seeking admission to the United States or seeking adjustment of status to a legal permanent resident (obtaining a green card), they are inadmissible, if at the time of the application or adjustment of status, it is likely, at any time, they will become a public charge. An immigration is considered to be a public charge if they would likely become “primarily dependent on the government for subsistence.”  

The public charge rule itself has been part of the immigration lexicon for many years, but the Trump Administration expanded its definition in 2019. Prior to 2019, public charge was often referred to as the likelihood that an immigrant who was applying to enter the US on a visa, or applying to become a Legal Permanent Resident (LPR), would become “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” The government agency would apply a forward looking standard based on a totality of the circumstances test, which would take into account age, health, family status, assets, resources, and financial status, as well as education and skills.

The Trump Administration expanded on this test and included the list of government benefits that counted against the immigrant. For the first time, Immigration officials were advised to consider public benefits such as cash assistance for income maintenance, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), State and local cash assistance programs, housing subsidies such as Section 8, and/or institutionalized for long-term care at government expenses in a nursing home or mental health institution and covered by Medicaid. The Trump Administration also advised agencies to consider an application for fee waiver for immigration benefits which primarily effected naturalization applicants. If an immigrant accessed such services, they would likely have been deemed a public charge and thus, unable to receive certain forms of immigration relief.

The expansion also resulted in harsh standards for personal circumstances of an immigrant, if they were children, seniors, or individuals who have limited English proficiency, limited education, medical conditions, or large families. This standard would consider the likelihood of an immigrant to become a dependent of the government by the use of cash assistance or long-term care, to one that defines public charge as a person who is likely to need, in aggregate, more than 12 months of certain defined public benefits in any 36-month period in the future. Theoretically, a person who used benefits in the past could still overcome the public charge ground of inadmissibility under a totality of the circumstances analysis. But the legal standard under this rule makes it much more difficult.



However, this previous rule has been overturned and is no longer being pursued by the Biden Administration. Specifically, an Illinois District Court has enjoined the implementation and enforcement of the 2019 Department of Homeland Security public charge rule that went into effect nationwide. The government dropped its appeal of that order and withdrew other appeals pending in the Ninth and Second Circuit and in the Supreme Court. On March 15^th, 2020, the government formally removed the 2019 public charge rule from the Code of Federal Regulations and is now applying the previous, 1999 Interim Field Guidance concerning public charge inadmissibility.

Based on such changes, USCIS has provided guidance concerning pending and future applications. USCIS has stated on its official website that it will stop applying the Public Charge Rule to all pending applications and petitions that would have been subject to the previous rule. Currently, USCIS has advised that it will apply the 1999 Interim Field Guidance, which was in place previously. Any application placed on or after March 9^th, 2021 should not provide information required solely by the Public Charge Final Rule.

Specifically, applicants applying for adjustment of status should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. 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 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539 (Part 3).

If an individual has provided such information, USCIS will not consider any information provided that relates solely to the Public Charge Final Rule, including for example, information provided on the Form I-944, evidence or documentation submitted with Form I-944, evidence or documentation submitted with Form I-944, and information on the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539(A)(Part 3).

If you have received a Request for Evidence or Notice of Intent to Deny based solely on issues surrounding the Public Charge Rule or wish to know further about how the changes around immigration law effect your case, call our office and schedule an appointment.

We have capable attorneys that are fully equipped to serve your legal needs!