U.S. Citizenship and Immigration Services has announced that the Department of Homeland Security’s public charge rule will be implemented Feb. 24, 2020.

The rule will take effect in all states except Illinois, where it remains subject to a federal court injunction. The announcement comes after a 5-4 Supreme Court ruling to lift a nationwide injunction on the rule; the Court’s ruling did not address the injunction in Illinois.

Key Points:

  • Effective Feb. 24, employers will no longer be able to file the current version of Forms I-129, I-485, I-539, I-539A and I-864. USCIS said it would release new versions of the forms, submission instructions and guidance the week of Feb. 3.
  • Filings postmarked on and after Feb. 24 will be subject to the 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 on or after Feb. 24 will be required to 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.
  • The State Department issued a similar public charge rule for visa applicants applying at U.S. consulates abroad, which has not yet been enforced because the accompanying public charge visa questionnaire has yet to be finalized.

Background: DHS published the final public charge rule last August with an effective date of Oct. 15, 2019, but the rule was subsequently enjoined by multiple federal courts. The regulation redefines “public charge” under the Immigration and Nationality Act and significantly tightens rules used by USCIS adjudicators when determining whether an applicant may become a public charge in the future and is therefore inadmissible. The Supreme Court lifted the nationwide injunction earlier this week, clearing the way for the administration to implement the rule while litigation challenging it continues.

BAL Analysis: Employers and applicants for green cards and extensions or changes of nonimmigrant status in the U.S. should anticipate longer case processing timelines and factor in additional preparation time to complete updated or new USCIS forms. Employees should be prepared to furnish documentation and other information requested on the new forms pertaining to their finances, prior use of public benefits, or potential future reliance on public benefits. BAL will provide further updates as additional information is released.

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

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