USCIS announced on March 10th, 2021, that they will no longer apply the new public charge final rule published by previous Trump Administration in Aug 2019. In this article we will cover the background, what it means for Adjustment of Status applicants, H1B Visa, H4 Visa, F1 visa and other applicants going forward.
Before we dive into the details, let’s look at the brief background of the public charge final rule from August 2019 for context.
Background: Public Charge Rule in 2019 by Trump Administration
Why Public Charge Final Rule in 2019: Trump Administration modified the previous version of public charge rule saying that previous ‘public charge rule’ did not clearly define what is meant by “public benefit” vs. “public charge”. There was no systematic way to determine, if foreigners living in US or planning to get green cards would be considered as public charge.
How is Public Charge Determined : As per the revised public charge final rule by Trump Administration, below is the general scope that USCIS will consider as ‘public benefit’ used by an individual.
- General Assistance programs or any of the cash assistance programs for income maintenance from federal, state, local or tribal.
- Supplemental Social Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- Food Stamps, also called as Supplemental Nutrition Assistance program(SNAP)
- Medicaid that is Funded by Federal with some exceptions.
- Public Housing programs, Section 8 Housing Assistance, Section 8 project based rental assistance
If anyone, unless exempted, uses any of the above public benefits for more than 12 months in aggregate within a 36-month period, they will be considered as “public charge” and inadmissible on public charge grounds. If they use two benefits in a month, that is treated as 2 months and added towards the total 12 months aggregate. They gave exceptions for the same. For complete info, you can read complete details at articles : Public Charge Rule – H1B, H4 Holder and Public Charge Rule – F1 Students, OPT, STEM OPT
Public Charge Final Rule – Lawsuits in Courts : The public charge final rule from 2019 was challenged in many courts and even went to US Supreme Court and ultimately Supreme court said USCIS can go ahead with their public charge rule implementation on Jan 30, 2020. USCIS made the revised public charge rule effective from Feb 24th, 2020. But, later it was put on hold for sometime due to COVID situation. Again, USCIS started asking for new Public Charge forms.
DHS Not defending the Court Decision : Finally, on March 9th, 2021 a Court in Illinois lifted its stay that resulted in other Illinois court order taking effect that removes public charge rule. DHS said based on their review as per new administration’s Executive Order 14012 and their priorities, they will not defend the case and remove the public charge rule as per Court order. The current guidance is released by USCIS on how public charge rule would work in future.
Phew ! that was a lot of background… Let’s look at what USCIS guidance says now
USCIS Guidance on Public Charge Rule, Impact on applicants
Below is the summary of the decision by USCIS and guidance given by them for public charge rule going forward.
- Removal of Revised Public Charge Rule from Aug 2019 : USCIS honors the court decision from March 9th, 2021 and will no longer apply the Trump administration era’s Public Charge Final Rule from August 2019.
- USCIS will apply Public Charge Rule from 1999 : USCIS will apply the previously used public charge rule guidance from May 1999. You can read Interim Field Guidance Public Charge 1999
- USCIS will NOT Consider Public Benefits used for Public Charge : USCIS said that they will not consider public benefits such as public housing, Supplemental Nutrition Assistance Program (SNAP) benefits, general receipt of Medicaid (except few cases), general assistance programs, etc. towards public charge determination for adjudication of applications or assessment of public charge from March 9th onwards.
- Pending applications will NOT be assessed for Aug 2019 Public Charge : All the pending applications, petitions with USCIS will not be using the Aug 2019 public charge rule for determination of public charge. They will be assessed based on the standard public charge criteria as per 1999 interim field guidance.
- No Public Charge Rule for H1B, H4, L2, F1, others.: USCIS will not apply the revised public charge rule from Aug 2019 to all the application or petitions filed with USCIS by non-immigrant visa holders such as H1B, H4, F1, L2, etc. for general applications, Extensions or Change of Status applications.
- No need to submit Form I-944 by Adjustment of Status(AOS) Applicants : USCIS says that Adjustment of Status (AOS) applicants, filing form I-485, do not have to submit Form I-944, Declaration of Self Sufficiency. Also, there is no need to submit any supporting documentation or evidence related to finances that were required as part of Form I-944.
- H1B, L1, H4, L1, F1, Others do not have to Public Charge related Sections : USCIS says that non-immigrant visa holders like H1B, L1 using form I-129 do not have to submit Form I-129, Part 6 that is related to Public Charge details. Also, similarly, H4, L2, F1, other visa holders using Form I-539 for extensions or COS do not have to submit Form I-529, Part 5 and I-539A, Part 3 that are related to public charge.
- Pending application with Form I-944 and documentation: USCIS said that, if someone has already submitted the Form I-944 or related forms for public charge rule from 2019, there is nothing to worry. They will not use that information explicitly for making decision on the pending cases on or after March 9th, 2021.
- RFE, NOID Issued for Public Charge Final Rule from 2019 : If you have got any RFE or NOID from USCIS to submit documentation related to Public Charge final rule, then you do not have to provide the related information related to public charge. But, you need to respond to the RFE and NOID as per the standard requirements for public charge as per previous guidance from year 1999.
- USCIS will give more guidance on the Affected forms : USCIS said that they will give more guidance on the usage of the affected forms with public charge details to be filled. In the meantime, they said that everyone can continue to use the current forms and leave the public charge benefits related fields blank or complete them. They will not reject the application if they are completed or left blank. This is related to the forms such as Form I-129(Part 6), Form I-539(Part 5), Form I-539A(Part 3), Form I-129CW(Part 6), Form I-944.
- Update : On March 19th, USCIS released new forms without the public charge details, see below.
USCIS Releases New Forms for H1B, H4, L1, Others
On March 19th, 2021, USCIS released new editions of the existing forms by removing the public charge sections. They have sent an alert to all the stakeholders and public indicating the same. See below screenshot. Below are the guidelines for new editions of the forms
- Anyone filing forms with USCIS for extensions, COS, etc. need to use the forms with new edition “3/10/21” that are published on USCIS website.
- The USCIS Forms with revised versions are below
- I-129 form that is used by H1B, L1, other work visas
- I-539, I-539A forms that are used by H4, L2, F1 for COS, Extensions, others.
- I-485 form that is used for Adjustment of Status
- Other forms that are changed are I-864, I-864A, I-864EZ, I-864W, I-129CE, I-129CWR, I-485A, I-485J, and I-912
- The last date for accepting old versions/editions of form are April 18th, 2021. Starting from April 19th, 2021, USCIS will only accept only the latest forms with “edition 3/10/21”.
- If you use old version, usually USCIS reject them asks you to resubmit. So make sure you use the right version of the latest form.
- See below screenshot on where you can find the edition of the form.
Summary – Public Charge Determination – What is the reality?
Biden Administration promised that they will get rid of the revise public charge rule after they take office and they did. In fact, the impact of it is huge. It is estimated by US Govt. that this revised public charge final rule by Trump Administration from 2019 could have impacted about 382,264 annually. Removing of the Trump era’s public charge final rule does not mean, it is a free ride and everyone do not get assessed for public charge. Below is the reality of the public charge determination and rationale used by USCIS over the years.
General Public charge rule is not something new that was created by Trump Administration. It has been there in the US since 1880s. There were some revisions done over the years, but just that Trump team took it to the extreme. The general background of public charge rule is that anyone planning to move to America as permanent resident or get green card should not be primarily dependent on Government benefits for their livelihood in the US.
The public charge rule basically wants people moving to US be self-sufficient and they do not become “public charge” or “burden to the US taxpayers or US Govt”. The logic is that immigrants planning to settle in US cannot just become burden by using the US Government programs like food stamps, Medicare, housing benefits, etc. and they need to be self-sufficient. In fact, there are sponsor affidavits (legal contract) in place today for family sponsored green cards categories to make sure the moving family members do not become a public charge.
Hope that gives you the reality check on the Public Charge and How USCIS would continue to use public charge in the future.
What do you think of the removal of Public Charge rule ? Share your thoughts in comments below.