We have written much about the public charge rule that was put into effect by the Trump administration and the ongoing litigation that ensued to stop it from taking effect.
Timeline of Latest Court Decisions
On September 11th, 2020, the United States Court of Appeals issued a decision that, for the time being, allowed the implementation of the Public Charge Rule.
Recently on November 2nd, 2020, the U.S. District Court for the Northern District of Illinois ruled the Public Charge Rule as invalid and USCIS stopped applying the Public Charge Rule to all applications and petitions that would have been subject to it.
However, on November 3rd, 2020, the U.S. Court of Appeals for the Seventh Circuit ruled that the government should be able to continue applying the Public Charge Rule. This means that all adjustment of status (Form I-485) applications must be filed with Form I-944 once again.
A Review of the Public Charge Rule
Initially proposed in 2018, the controversial rule requires that aliens seeking an adjustment of status demonstrate that they have not received public benefits over the designated threshold, as defined in the law:
“The Immigration and Nationality Act (INA or the Act) renders inadmissible and therefore (1) ineligible for a visa, (2) ineligible for admission and (3) ineligible for adjustment of status, any alien who, in the opinion of the DHS (or the Departments of State (DOS) or Justice (DOJ), as applicable), is likely at any time to become a public charge.”
This rule updates the previously more narrow definition of “public charge” to mean a person who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (note: receipt of two benefits in one month counts as two months).
It’s important to remember that applicants will not be penalized for use of these benefits by a spouse or child. The new rule would expand the definition to include a wider range of common government benefits:
- Benefits that have traditionally not been counted under the public charge rule (SSI, TANF, general assistance, and long-term institutional care)
- Supplemental Nutrition Assistance Program (SNAP) (also known as “Food Stamps”)
- Section 8 housing and rental assistance
- Federal housing subsidies
- Non-emergency Medicaid benefits (with exceptions for children under 21, people with disabilities, pregnant women, and mothers within 60 days after giving birth)
What Applicants Need to Know Now
As a result of the most recent court ruling, all applications for adjustment of status must include Form I-944, Declaration of Self-Sufficiency.
USCIS has made allowances for the uncertainty surrounding the public charge rule in 2020. If you filed your Form I-485, Application to Register Permanent Residence or Adjust Status, after February 24, 2020, and you did not include Form I-944, USCIS will likely contact you to request any missing forms and evidence. However, USCIS will reject Form I-485 if the applicant does not include the required forms and evidence with Form I-485 at the time of filing.
How to Read the Instructions for Form I-944
The instructions for Form 944 refer to October 14, 2019 as the cutoff date, after which receipt of public benefits (“whether the alien applied for, was certified or approved to receive, or received certain non-cash public benefits”) must be reported. USCIS has moved this deadline to February 24, 2020, but the official instructions on the form have not been updated accordingly. Applicants are asked to read any references to 10/14/2019 as 2/24/2020, and benefits received prior to this later date do not have to be reported. This form is quite extensive and requires additional documentation and information specific to the I-944.
Have questions about the Public Charge rule and how it could affect the status of your application? Contact me to discuss your case!