As of March 9, 2021, U.S. Citizenship and Immigration Services (USCIS) has stopped implementing Trump’s public charge final rule, which utilized an applicant’s financial situation, among other elements, as a way to vet out those who might someday become a public charge for the United States.
This was the result of a change in federal litigation where the Biden administration would no longer defend the public charge in federal court. The final rule had created uncertainty and fear for immigration relief applicants who worried their applications would be denied even if they were properly obtaining government public benefits and more importantly, for simply being working-class or middle-class individuals because they could not meet the “wealth test” according to critics. Fortunately, USCIS has announced that they have reinstated the public charge guidance from 1999 and have ceased to consider factors outlined by Trump’s public charge final rule. The Form I-944, along with additional supporting evidence and information related to the receipt of public benefits, will now longer be required. This decreases the regulatory burden and obstacles that was the sinister purpose of the public charge rule, which had been influenced by the xenophobic and anti-immigrant Stephen Miller at the previous White House.
Trump’s Public Charge Final Rule Was Extremely Intrusive and Burdensome
The Department of Homeland Security (DHS), under the Trump Administration, initially published the final rule on August 14, 2019, but due to federal litigation, it was implemented on February 24, 2020. Starting on that date, USCIS had the power to take into consideration an applicant’s use of certain public benefits when adjudicating applications subject to the public charge ground of inadmissibility such as those petitioning their immediate relatives or those seeking to extend their stay or change status. Although the public charge ground of inadmissibility existed for many years, Trump’s final rule gave USCIS more intrusive and big-brother type unfettered access to analyze an applicant’s socioeconomic status. More specifically, some of the many factors considered in the public charge assessment and Form I-944, Declaration of Self-Sufficiency included:
- Whether an applicant had any assets or resources and their level of education and skills.
- Whether an applicant and their household members had filed federal income tax returns.
- If older than 61, whether the applicant could demonstrate ability to work and financially support themselves.
- Whether the applicant had insurance and/or could demonstrate ability to pay for anticipated medical costs; and
- Whether the applicant received any public benefits such as Social Security, Food Stamps, Housing Assistance, among other benefits.
In considering all the factors, USCIS officers had the discretion to weigh factors differently in favor or against an individual’s application. One of the factors was income, which research shows disproportionately affects Asian, Latin American and African immigrants, while benefiting those immigrating from Western Europe. Under this rule, an applicant who did not clearly show their ability to financially maintain those in his or her household or those likely to end up needing housing assistance or medical coverage due to preexisting conditions, would be found to be inadmissible due to their likelihood of becoming a public charge. Previous waves of immigrants, many whom entered through Ellis Island, would not have been allowed to enter the United States under this public charge rule.
USCIS Will Continue Using Prior Field Guidance from 1999
USCIS has reinstated the former standards, published in the Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, which were enacted in 1999. The rules in the guidance limit USCIS officers’ discretion to deny a case even if someone is more likely than not to become a public charge. Instead, an applicant must clearly be dependent on the government demonstrated by a history of receiving cash assistance or long-term institutionalized care such as in hospitals or nursing homes and even such cases would not constitute an immediate bar to admissibility but another factor for an officer to consider. Most importantly, the reinstated standards do not punish an applicant for their family members’ receipt of public benefits, unless the family is depending almost entirely on cash assistance benefits. This will allow individuals to obtain various government assistance benefits for their children and/or family members without fear that it will result in an automatic denial of their immigration application, which was one of the most frequently asked questions when the new public charge rule went into place.
Regardless of the change, most applicants seeking to adjust status will still be responsible for showing that they will be able to financially support themselves and are not likely to become a public charge. Most applicants are still required to submit affidavits of support to receive immigration benefits. An applicant will also need to submit additional documentation if they do not earn sufficient income for their household size and require a joint sponsor for their application, if the applicant does not meet certain income thresholds. If you or a loved one have questions regarding possible immigration relief or the changes in the public charge rules, please reach out to our office for an initial consultation with an attorney.