Public Charge Rule Implementation with both USCIS and Department of State
/On February 22, 2020, USCIS confirmed that it will implement the Inadmissibility on Public Charge Grounds final rule on February 24, 2020, nationwide after the Supreme Court granted the government's motion for a stay of the Illinois-based injunction. USCIS will now determine whether a person is inadmissible to the United States based on the prospective “likelihood of becoming a public charge at any time in the future” and this includes a requirement that those seeking a nonimmigrant 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.”
At the same time, the Department of State (DOS) will implement the new public charge standards pursuant to the DOS Interim Final Rule for overseas applications on the same date, including the new DS-5540, DOS Public Charge Questionnaire. DOS has indicated that it may apply the DS-5540 to applicants who have previously been found documentarily qualified for a visa before February 24, 2020.
These polices apply to immigrants applying for immigrant visas abroad or green cards processed inside the United States, including green card holders that leave for 180 days or more and seek to reenter the US as well as those seeking a change of status or extension of nonimmigrant status (such as H-1B, F-1, J-1, O-1 visa status).
The following are additional resources regarding the public charge policy:
Supreme Court opinion issued February 21, 2020, including a dissent by Justice Sonia Sotomayor, https://www.supremecourt.gov/opinions/19pdf/19a905_7m48.pdf
Department of State’s interim final rule published in October 2019, https://www.federalregister.gov/documents/2019/10/11/2019-22399/visas-ineligibility-based-on-public-charge-grounds, and related announcement, https://travel.state.gov/content/travel/en/traveladvisories/ea/Information-on-Public-Charge.html
DS-5540, DOS Public Charge Questionnaire, https://eforms.state.gov/Forms/ds5540.pdf
Updated DOS Foreign Affairs Manual section on public charge, https://fam.state.gov/fam/09fam/09fam030208.html
USCIS revised forms and updated policy guidance, https://www.uscis.gov/news/alerts/public-charge-inadmissibility-final-rule-revised-forms-and-updated-policy-manual-guidance
USCIS policy alert, https://www.uscis.gov/sites/default/files/policymanual/updates/20200205-PublicCharge.pdf
USCIS announcement, https://www.uscis.gov/news/news-releases/uscis-announces-public-charge-rule-implementation-following-supreme-court-stay-nationwide-injunctions
Immigrant Legal Resource Center, Public Charge Toolkit, including a “Totality of the Circumstances Worksheet” with ideas for positive evidence, https://www.ilrc.org/sites/default/files/resources/2019.12_public_charge_legal_toolkit-final-12.10.pdf
National Immigration Law Center, Protecting Immigrant Families page, https://protectingimmigrantfamilies.org/;summary of developments, https://www.nilc.org/issues/economic-support/pubcharge/
If you have received public benefits in the past or could require public assistance, we recommend that you contact Iandoli Desai & Cronin to schedule a consultation.
