A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Saturday, March 13, 2021

The Public Charge Rule is Dead




Since the advent of the new presidency, immigration policy has drastically changed. Most recently, the public charge final rule that was enforced on and off amidst lawsuits and court injunctions has finally died out. The Secretary of Homeland Security himself announced on March 9th, 2021 that the federal government will no longer seek to implement the public charge rule, decisively putting the final nail in the coffin.

So what does this mean for applicants? Any evidence and information submitted only to meet the public charge rule requirements will not be counted in adjudications from March 9th, 2021 onward. For I-485 applicants, it means Form I-944 Declaration of Self-Sufficiency and its required evidence. For nonimmigrant visa applicants, this means public benefit questions in Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).  

For applications submitted on or after March 9th, these public charge forms and evidence are no longer required. Applications filed without their respective public charge final rule sections completed will not be rejected starting March 9th, 2021.

Sections of Requests for Evidence (RFE) or Notices of Intent to Deny (NOID) that address public charge final rule aspects and that are due on or after March 9th, 2021 do not need to be answered. However, other parts of the RFE/NOID unrelated to the public charge rule still must be responded to.

Overall, the public charge final rule is done and all the application requirements that came with it are no longer to be met. Immigrant visa applicants will no longer be heavily judged on their use of public benefits, health insurance, assets, and other self-sufficiency factors. It will be much easier to petition for family members to enter and stay in the U.S.  

DHS will revert back to a 1999 policy guidance issued by the former INS on the issue of public charge as a ground of admissibility.  The previous policy adopts a "totality of the circumstance test" and emphasizes financial help from family and friends.  Applicants who have received cash public assistance income maintenance (e.g, SSI) and/or received long-term institutionalized care (i.e., nursing home) must provide additional evidence to prove that they will not become public charge.  Receipt of other non-cash benefits such as public school education, school lunch, food stamps, emergency care, etc., would not cause denial of applications. 

We can expect the forms and their instructions to be updated in the near future to reflect this policy change. USCIS will also issue more guidance on this topic soon.

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