Guidance for Filing Applications After USCIS Announces It Will Stop Applying the Public Charge Final Rule

Guidance for Filing Applications After USCIS Announces It Will Stop Applying the Public Charge Final Rule

Dated March 11, 2021

Background

On March 9, 2021, consistent with Executive Order 14012 directing the review of the 2019 Public Charge Final Rule, the Department of Justice successfully moved various courts to dismiss all pending appeals defending the Final Rule.2 For information about the relevant court decisions, USCIS provided this litigation summary. As a result, USCIS announced it would immediately stop applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. USCIS continues to apply the public charge inadmissibility statute, including consideration of the statutory minimum factors in the totality of the circumstances, in accordance with the 1999 Interim Field Guidance that was in place before the Public Charge Final Rule was implemented. In addition, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status. Therefore, USCIS is not considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.

On March 10, 2021, USCIS removed the I-944 from its webpage and provided guidance concerning previously filed Adjustment of Status Petitions, Extensions or Changes of Status Petitions as well as Notices of Intent to Deny (NOID) and Requests for Evidence (RFE) that pertain to the Public Charge Final Rule. USCIS noted that it will issue additional guidance regarding the use of affected forms.

AILA provides this practice pointer as guidance on how to file affected forms given that the Public Charge Final Rule has been invalidated.

Guidance for Adjustment of Status Application and the Public Charge Final Rule

If the Adjustment of Status Petition is filed on or after March 9, 2021:

  • Applicants should not submit the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required in furtherance of the Public Charge Final Rule with their Form I-485.
  • At this time, USCIS has announced that it will not reject any Form I-485 based on the inclusion or exclusion of Form I-944.

If the Adjustment of Status Application was (1) filed on or before March 8, 2021, (2) USCIS adjudicates the case on or after March 9, 2021, and (3) at the time of filing Applicant or Petitioner included information pertaining to the Public Charge Rule with their Adjustment of Status Petition:

  • USCIS will not consider any information that relates solely to the Public Charge Final Rule, including, for example, information provided on Form I-944, evidence or documentation submitted with Form I-944.
  • Any other information received will be evaluated consistent with the statute, regulations, and policies in effect at the time of adjudication.

If the Adjustment of Status Application was (1) filed on or before March 9, 2021, (2) receives or received a RFE or NOID concerning information that solely concerns the Public Charge Final Rule, including but not limited to Form I-944 AND (3) a response is due on or after March 9, 2021:

  • Applicants need not respond to the sections or inquiries of the RFE or NOID that solely pertain to the Form I-944 or Public Charge Rule.
  • Applicants are still required to respond to the RFE or NOID that otherwise pertains to the eligibility for the immigration benefit sought.
  • If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and their inquiry is consistent with the 1999 Interim Field Guidance, USCIS will issue a subsequent RFE or NOID.
  • BEST PRACTICE: To avoid an incorrect denial for failure to respond, members are encouraged to respond to the RFE or NOID with a copy of the guidance published by USCIS and state that as the requirement has been rescinded, a response is unnecessary, even if the RFE inquiries solely on the Form I-944 or Public Charge Rule.

Extensions or Changes of Status for Nonimmigrant Petitions and Information Related to the Receipt of Public Benefits

If Applicants or Petitioners file for an Extension or Change of Status for Form I-129, Form I-129CW, Form I-539, or Form I-539A on or after March 9, 2021:

  • Applicants and Petitioners should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).

If the Applicants or Petitioners filed for an Extension or Change of Status for Form I-129, Form I-129CW, Form I-539, or Form I-539A (1) on or before March 8, 2021, (2) USCIS adjudicates the case on or after March 9, 2021 and (3) at the time of filing Applicant or Petitioner included information pertaining to public benefits:

  • USCIS will not consider information on the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).
  • Any other information received will be evaluated consistent with the statute, regulations, and policies in effect at the time of adjudication.

If Extension or Change of Status for Form I-129, Form I-129CW, Form I-539, or Form I-539A was (1) filed on or before March 9, 2021, (2) receives or received a RFE or NOID concerning information that solely concerns the Public Charge Final Rule, 944 AND (3) a response is due on or after March 9, 2021:

  • Applicants or Petitioners need not respond to the sections or inquiries of the RFE or NOID that solely pertain to the Public Charge Final Rule.
  • Applicants or Petitioners are still required to respond to the RFE or NOID that otherwise pertains to the eligibility for the immigration benefit sought.
  • If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and their inquiry is consistent with the 1999 Interim Field Guidance, USCIS will issue a subsequent RFE or NOID.
  • BEST PRACTICE: To avoid an incorrect denial for failure to respond, members are encouraged to respond to the RFE or NOID with a copy of the guidance published by USCIS and state that as the requirement has been rescinded, a response is unnecessary, even if the RFE inquires solely on the Public Charge Final Rule.

Learn More

AILA will continue to monitor and provide updates on the latest developments on the Public Charge Featured Issues Page.


1 Special thanks to USCIS Case Assistance Committee member, Sylvia Livits-Ayass, for her work on this practice resource.
2 Several states have sought to intervene in these cases to have them reinstated and to defend the validity of the Public Charge Final Rule. Should they be successful, USCIS may be required to implement the Final Rule once again.

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