Update on public charge rule: impact on employers filing USCIS forms, lawsuits could delay implementation

The public charge regulation, scheduled to take effect Oct. 15, imposes changes to filing requirements for several forms, including the Form I-129 Petition for Nonimmigrant Worker that is filed on behalf of H-1B and other nonimmigrant workers. The rule also requires a new form for many adjustment of status applicants that significantly increases their documentation obligations. The U.S. Citizenship and Immigration Services website indicates that the agency will discontinue the current forms as of Oct. 15, to be replaced with new forms that have not yet been released. The government is currently subject to 10 separate lawsuits challenging the public charge rule, and it remains to be seen whether any of the suits will delay implementation.

Key points:

• Effective Oct. 15, according to the USCIS website, employers will no longer be able to file the current version of Forms I-129, I-485, I-539, I-539A and I-864.
• Final versions of the revised forms have not yet been released, and the agency has not provided for a grace period during which the old versions would continue to be accepted. As a result, according to the information available today, employers will either need to file petitions postmarked on or before Oct. 14 or wait for the new version of the form to be released for filings on and after Oct. 15.
• Filings postmarked on and after Oct. 15 will be subject to the public charge rule. For nonimmigrant workers changing or extending status, this means they must attest that they have not received public benefits as defined in the regulation since obtaining their nonimmigrant status; they do not need to prove that they will not become a public charge in the future. Adjustment-of-status (green card) applicants filing after Oct. 14 must submit a new form (Form I-944 Declaration of Self-Sufficiency) and supporting documentation to demonstrate that they will not become a public charge in the future under the regulation’s expanded definitions. USCIS has not published a final version of the Form I-944 or its instructions.
• The American Immigration Lawyers Association (AILA) filed a lawsuit Monday seeking to block USCIS from discontinuing the current forms without providing a grace period to transition to new versions of the forms.

BAL Analysis: For affected petitions that are currently being prepared, employers are encouraged to file by the Oct. 14 deadline. Employers should anticipate delays and lengthier processing times for affected forms after the public charge rule takes effect Oct. 15. They should also factor in additional preparation time to allow employees to collect information and documents concerning their finances and other factors pertaining to their past use of or potential reliance on public benefits. BAL is following the lawsuit filed by AILA, which, if successful, could result in USCIS providing a 60-day grace period during which USCIS would be required to accept the current versions of the forms. BAL is also monitoring other lawsuits challenging the public charge rule, and will report on developments.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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