The field of immigration law is ever-changing, and qualified attorneys in the United States must keep abreast of any recent developments in the areas of visas and green cards. The climate in the United States with regard to immigration has changed greatly since the election of President Trump in 2016, and the United States Citizenship and Immigration Services (USCIS) has found it necessary to change a multitude of policies in response.
In general, the rules regarding immigration in the United States are codified by the Immigration and Nationality Act (INA), but the verbiage in the Act is subject to interpretation. Moreover, when federal judges issue decisions based on rules set forth by the Department of Homeland Security (DHS), these holdings can be challenged in a higher court. This means that the policy regarding a foreign national’s requirement to disclose whether they are likely to become a public charge can be one way this week, but the rules could be altered the next day.
Between the Fall of 2019 and the Summer of 2020, there have been multiple changes in the policies regarding whether or not a foreign national needs to include a Form I-944 with their other immigration forms. In fact, although the INA is a federal Act, currently several states are subject to different rules than the rest of the country. Because this issue is still evolving, it is important to check with an immigration law professional for updates on current DHS rules.
1. What is the New Public Charge Rule?
The executive branch of the United States and the U.S. Department of State (DOS) have recently made it their priority to ensure that new immigrants to America will benefit the country, rather than become dependent on government payments. Hence, the concept of a new public charge has become a hot button issue.
After a great deal of resistance from lawmakers and immigrant advocates, the Inadmissibility on Public Charge Ground Final Rule initially became official on February 24, 2020. Under the New Public Charge Rule, a foreign national may be denied a visa or green card if it is determined that they are more likely than not to become a public charge.
According to the public charge webpage being provided by the USCIS, the new rule is based on the principle of self-sufficiency. According to several statutes in the INA, a foreign national should be found inadmissible if they are unable to care for themselves without relying on government benefits.
The New Public Charge Rule applies to green card applicants as well as those who wish to apply for or renew their nonimmigrant visas. Under the current interpretation of the INA, beneficiaries of both immigrant and nonimmigrant visas may be subject to the rule.
Under the New Public Charge Rule, for most green card seekers who are already in the United States, they are required to complete Form I-944 when they file their Form I-485 adjustment of status application with the USCIS. For those who apply for green card through consular processing, the U.S. consulate may require them to submit DS- 5540. Both Form I-944 and DS-5540 is used to collect extensive information and evidence pertaining to green card applicants’ age, health, household size, financial resources, and education and skills. In addition, they may be required to disclose whether or not they have received government money, such as food stamps or welfare, as well as whether they are likely to need such help in the future.
However, the USCIS policies regarding the New Public Charge Rule have continued to fluctuate throughout 2020.
2. History of the Public Charge Rule
Although the idea of self-sufficiency of those who seek to live and work in the United States is not a new concept, the notion has changed and developed over three centuries.
Public Charge in the 1800’s
The concept of a public charge has been around since the early portions of American history. Since the 1800’s, there has been a congressional statute that states that foreign nationals are not admissible to the United States if they lack self-sufficiency and can only thrive by becoming public charges.
Public Charge in the 1900’s
The Immigration and Nationality Act (INA) was enacted in 1952, but it has been periodically amended as the needs and aspects of American society have changed. Beginning in 1996, several federal laws stated that foreign nationals generally should be self-sufficient.
Several sections of the INA address the concept of inadmissibility based on becoming a public charge. These include INA sections 212, 213, 214 and 248. However, the meanings of the “public charge” portions of the INA has been subject to interpretation over the years.
3. Recent Suspension of the New Public Charge Rule and Form I-944
On July 29, 2020 the U.S. District Court for the Southern District of New York (SDNY) in State of New York enjoined DHS’s implementation of the New Public Charge Rule while there is a national health emergency in response to the pandemic of COVID-19. As a result, On August 4, USCIS announced it will use the 1999 public charge guidance to the adjudication of any application for I-485 adjustment of status and any application or petition for extension of nonimmigrant stay or change of nonimmigrant status on or after July 29, 2020.
Furthermore, on July 29, 2020, the USCIS issued a statement that Form I-944 would no longer be required after a court ruling determined that it was not appropriate during the unprecedented need for government assistance due to the coronavirus pandemic. The USCIS announcement reads in part that: “Applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, Form I-129CW, Form I-539, or Form I-539A. USCIS will issue guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944.”
So the answer to the question, “Has the new public charge rule been suspended?” was “Yes” on July 29, 2020, but that has not been the end of the matter. Soon after this announcement, a federal appellate court limited the July 29, 2020 order. As a result of the order, green card applicants who are residents of New York, Connecticut, and Vermont are not required to submit their Form I-944 to the USCIS. Other green card applicants who are not residents of the three states are not necessary to submit the Form I-944, either based on the USCIS’s statement in the page of Form I-485. Nevertheless, the USCIS will issue USCIS further guidance regarding the use of affected forms in the near future and DYgreencard will keep a close eye on it.
