News

Published on 3.11.2021

On March 10, 2021, the U.S. Citizenship and Immigration Services (USCIS) announced that it will no longer implement the public charge rule adopted by the Trump administration in August 2019, after the rule was blocked by federal courts. 

Effect on new immigration applications

As USCIS is no longer implementing the August 2019 rule, applicants are not required to submit any evidence that would have been required only under that rule.  This means that Form I-944, Declaration of Self-Sufficiency is no longer required for those applying to adjust status to permanent residence. Supporting documents that accompanied Form I-944 are also no longer required, unless they fall under a separate rule that remains in effect (including the pre-Aug. 2019 public charge rule).

In addition, those individuals submitting applications or petitions to change or extend their temporary non-immigrant status (Forms I-539, I-129, etc.) are no longer required to provide any information related to receipt of public benefits. 

Effect on pending applications

If you have an application already pending before USCIS and you received a Request for Evidence or Notice of Intent to Deny seeking information solely related to the Trump-era public charge rule, including but not limited to Form I-944 or related supporting evidence, you are not required to submit that information if your deadline to respond falls on or after March 9, 2021.

If you received a Request for Evidence of Notice of Intent to Deny seeking information not related to Form I-944 or the Trump-era public charge rule, you must still respond to the agency’s request by the deadline indicated in the respective notice.  The public charge rule is still in effect, just not in the version implemented by the Trump administration.  Form I-864 Affidavit of Support is still required, and so is all supporting evidence that must go with it (proof of employment, income, tax records, etc.).

We recommend all applicants pay close attention to the requests or notices they receive from USCIS, as they may contain mixed requests, pertaining both to the Trump-era public charge rule, and to the general public charge rule (still in effect), or to other aspects of their case.  Failure to respond to requests that are still required or allowed under the law will lead to the application being denied.

Background on the Public Charge Rule

Under the Immigration and Nationality Act (INA), the U.S. government can deny an applicant permanent residence (i.e. green card) if the agency determines that the applicant is “likely to become a public charge.”  This portion of the INA, namely INA Section 212(a)(4), has historically been interpreted to exclude from permanent residence someone who is likely to become permanently and primarily dependent on the government for subsistence.

Prior guidance directed that an applicant could not be disqualified on public charge grounds based on non-cash benefits or special-purpose cash benefits that are not intended for income maintenance.  The Trump rule, which was announced in August 2019, deviated from the congressional intent of permanent and primary dependency, and effectively disqualified individuals who would obtain temporary or special-purpose benefits, including certain nutrition and housing programs.  

The Trump rule also implemented Form I-944, Declaration of Self-Sufficiency, which USCIS required of all applicants for permanent residence, and which seeks to disqualify individuals based on age, education, employment history, and medical history, among others. 

On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Trump Public Charge rule.  The Seventh Circuit stayed that decision and allowed the Trump administration to continue enforcing the rule while the federal case was making its way through the appeals process.  However, on March 9, 2021, the U.S. Supreme Court dismissed the public charge case pending before that court.  That same day, the Seventh Circuit Court of Appeals lifted the stay on the N.D. IL decision, therefore allowing the district court’s ruling to go in effect in full force.  As a result, USCIS promptly announced it was complying with the court’s order terminating the Trump-era public charge rule.

If you are seeking clarification on how the public charge rule affects your case, or if you have any other immigration-related question, contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or (608) 252-9291.