Labor & Employment Law I JANUARY 31, 2020

Federal Government Will Implement Immigration Public Charge Rule

United States Citizenship and Immigration Services will implement the Inadmissibility on Public Charge Grounds rule on Feb. 24, 2020, except for in the state of Illinois where the rule, for now, remains enjoined by a federal court. This rule will make it more difficult for some persons to obtain or maintain U.S. nonimmigrant and immigrant status.

The rule prescribes how the Department of Homeland Security would determine whether an alien is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act. Under the rule, USCIS will look at factors such as an alien’s age, health, income, education, and skills, among others, in order to determine whether the alien is likely at any time to become a public charge.

The rule also addresses USCIS’ authority to issue public charge bonds in the context of applications for adjustment of status. Finally, the rule includes a requirement that aliens seeking an extension of stay or change of status demonstrate that they have not received public benefits over the designated threshold since obtaining the nonimmigrant status they seek to extend or change.

Except for in the state of Illinois, USCIS will only apply the rule to applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020. For applications and petitions that are sent by commercial courier (e.g., UPS/FedEx/DHL), the postmark date is the date reflected on the courier receipt. The rule prohibits DHS from considering an alien’s application for, certification, approval to receive, or receipt of certain non-cash public benefits. To promote clarity and fairness to the public, DHS will now treat this prohibition as applying to such public benefits received before Feb. 24, 2020. Similarly, the rule prohibits DHS from considering the receipt of public benefits by applicants for extension of stay and change of status before Oct. 15, 2019 when determining whether the public benefits condition applies, and DHS will now treat this prohibition as applying to public benefits received on or after Feb. 24, 2020.

USCIS will post updated forms, submission instructions, and Policy Manual guidance on the USCIS website during the week of Feb. 3, 2020. After Feb. 24, 2020, everywhere except in the state of Illinois, USCIS will reject prior editions of forms if the form is postmarked on or after Feb. 24, 2020. If USCIS receives an application or petition for benefits using incorrect editions of the forms, USCIS will inform the applicant or petitioner of the need to submit a new application or petition using the correct forms.