What’s the Latest on the New Public Charge Rules Stateside and Abroad?

What is the current status of the new public charge rules?

• @ S. Citizenship and Immigration Services (stateside): Under a July 29, 2020 court ruling in New York, the U.S. Department of Homeland Security (DHS) cannot “enforce, apply, implement, or treat as effective” its new public charge rule “for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.”

However, under an August 12, 2020, Second Circuit Court of Appeals ruling, this injunction, or prohibition, is limited to Vermont, Connecticut, and New York. Thus, under the Second Circuit’s ruling, USCIS will apply the old public charge guidance from 1999 in these three states.

In all other states and the District of Columbia, DHS may implement its new public charge rule. Because USCIS has not updated its website or issued any guidance since the Second Circuit’s ruling, it remains unclear whether—and if so, how—USCIS will implement the rule in states not covered by the August 2020 injunction or in the District of Columbia.

• @ S. Department of State (abroad): Also under a July 29, 2020 court ruling in New York, the U.S. Department of State (DOS) cannot “enforce, apply, implement, or treat as effective” its new public charge rule and related Foreign Affairs Manual (FAM) guidance.

On August 7, 2020, DOS announced that it would comply with the July 2020 injunction and that revised guidance would be issued.

The August 2020 decision by the Second Circuit does not affect the July 2020 court order barring the implementation of the DOS public charge rule, as that is a separate matter. In addition, unlike the DHS injunction as it stands now (limited to Vermont, Connecticut, and New York), the DOS injunction applies regardless of location.

What are the new public charge rules?

On February 24, 2020, the U.S. Department of Homeland Security (DHS) and the U.S. Department of State (DOS) implemented new public charge rules amending how the U.S. government will determine whether a person applying for admission to the United States, whether as an immigrant or non-immigrant, is inadmissible because they are likely at any time to become a public charge. As implemented, the new DHS public charge rule applied to all applications and petitions postmarked or submitted electronically on or after February 24, 2020, and the new DOS rule applied to all applications and petitions processed on or after that date.

• The DHS rule, if implemented, would allow U. S. Citizenship and Immigration Services (USCIS) (stateside) officers to consider current, past, and potential future receipt of certain public benefits above a given “threshold” as a “heavily weighted negative factor” in the public charge determination. The rule would also allow USCIS officers to consider as additional negative factors, a large family size, having a health condition without private health insurance, and being under 18 or over 65. With this rule, USCIS established a new form, I-944, Declaration of Self-Sufficiency, to collect relevant information from applicants for adjustment of status, certain lawful permanent residents seeking to reenter the country after a period of travel abroad, and, in some cases, extensions of stay and changes of status within the United States.
• The DOS rule, in alignment with the DOS rule, if implemented, would allow consular officers (abroad) to consider a wider range of public benefits when determining whether visa applicants who have received or are currently receiving benefits are inadmissible to the United States on public charge grounds. With this rule, DOS published updates to the Foreign Affairs Manual (FAM), instructing consular officers on how to apply the public charge rule. DOS also established a new form, DS-5540, Public Charge Questionnaire, to collect relevant information from applicants for immigrant visas and, in certain circumstances, applicants for nonimmigrant visas.

This information is intended for educational purposes only. If you have questions about your eligibility for an immigration benefit, your immigration options, or how the public charge rule and associated court rulings might affect you, please contact Joseph & Hall at (303) 297-9171 to schedule a consultation with one of our experienced attorneys. If you are already a client of Joseph & Hall and have questions about your case, please contact your attorney to discuss your particular case.

Please stay tuned for continued updates via this website and our Facebook page throughout this time.