2019 Public Charge Rule Gets Tossed; 1999 Rule is Back
On March 9, 2021 the Public Charge rule under the prior Trump Administration was vacated and removed. USCIS and the U.S. Department of State will apply the old 1999 rule to determine whether a person is likely to become a public charge on the U.S. government. Under section 212(a)(4) of the Immigration and Nationality Act (INA), a person seeking entry to the U.S. on a visa or applying for permanent residence is inadmissible if, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge." Applicants will not be granted entry or a green card if they are deemed inadmissible under section 212(a)(4).
For some time, USCIS was applying the 2019 Public Charge rule and requiring green card applicants to submit a Form I-944, Declaration of Self-Sufficiency, with financial documentation, such as a credit score report, proof of health insurance, proof of assets and resources and proof of liabilities and debts.
Episode 9 of The Legal Immigrant podcast summarizes the beginning and end of the 2019 Public Charge Rule:
(1) Federal court challenges to implementation of the 2019 Public Charge Rule
On November 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the 2019 Public Charge rule nationwide. That decision was stayed by the U.S. Court of Appeals for the Seventh Circuit. On March 9, 2021, the Seventh Circuit lifted its stay and the U.S. District Court vacating the 2019 Public Charge Rule went into effect.
As a result, USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to that rule. USCIS agreed to apply the 1999 Interim Field Guidance, which was in place before the Public Charge Final Rule was implemented, when adjudicating any green card applications or application for change/extension of status that was pending or received on or after March 9, 2021.
(2) The 3 key changes under the 2019 Public Charge Rule
(a) Expanded the definition of "public benefits" to include previously excluded programs, such as Federally funded Medicaid with certain exclusion; Supplemental Nutrition and Assistance Program (SNAP), formerly called food stamps; Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.
(c) Applied the totality of the circumstances test based on age, health, family status, assets, resources, financial status, education, and skills. One heavily weighted negative factor was having received or been approved to receive one or more public benefits for more than 12 months in total within the 36-month period prior to applying for admission to the U.S., a green card, or a status change or extension.
(3) The decision to stop applying the Rule under the current Biden Administration
A federal case challenging the 2019 Public Charge rule was dismissed by the U.S. Supreme Court upon the Biden Administration’s request. The new Administration has already stated it will not continue to apply the 2019 rule and will return to the 1999 rule.
(4) How the decision to return to the 1999 Rule affects applications and petitions
On or after March 9, 2021, applicants and petitioners should not provide information required solely by the 2019 Public Charge Final Rule.
(5) What is still required to meet the INA 212(4)(a) requirements
- Certain T and U nonimmigrant visa applicants (human trafficking and certain crime victims, respectively); and
- Certain self-petitioners under the Violence Against Women Act.
For more information, see:
- Form I-864: Key to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination
- Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination
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