DEPARTMENT OF HOMELAND SECURITY PROPOSES NEW PUBLIC CHARGE RULE

The DHS has proposed a new “fair and humane” Public Charge rule meant to clarify its existing policy. The proposed rule is very similar to the current policy, but refines the forms of aid considered under the test. 

Unlike the DHS’s 2019 attempt to enact a Public Charge rule intended to restrict immigration, the new proposal should not create additional hurdles for immigrants. Under the new proposal, only four specific forms of public assistance would be considered in a Public Charge determination:

·         Supplemental Security Income (SSI);

·         Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program;

·         State, Tribal, territorial, and local cash assistance for income maintenance; and

·         Long-term institutionalization at government expense.

The DHS specifically excludes from the proposed rule:

·         Supplemental Nutrition Assistance Program (SNAP);

·         Children’s Health Insurance Program;

·         Most Medicaid benefits (except for long-term institutionalization at government expense;

·         Housing benefits;

·         Transportation vouchers;

·         Disaster assistance received under the Stafford Act;

·         Pandemic assistance;

·         Benefits received via a tax credit or deduction;

·         Social Security, government pensions, or other earned benefits.   

Additionally, specific categories of noncitizens would be exempted from public charge ground inadmissibility under the proposed rule, including:

·         Refugees and asylees;

·         TPS;

·         Special immigration juveniles;

·         T and U nonimmigrant;, and

·         Self-petitioners under the Violence Against Women Act (VAWA).

PUBLIC CHARGE RULE RESCINDED

USCIS announced on March 9 that it will no longer apply the Public Charge Final Rule.  The Public Charge Final Rule was published in October 2019 and subjected all I-485 applicants to a wealth test, requiring applicants to list and document all assets and debts on Form I-944.  Effective March 9, I-485 applicants no longer need to submit Form I-944.  

USCIS will not review any I-944 forms already submitted, and applicants can disregard any aspect of a Request for Evidence of Notice of Intent to Deny that requests information related to the Public Charge Final Rule.  

The Public Charge Final Rule had also required nonimmigrant visa applicants to answer questions about the receipt of public benefits on applications for extension of stay or change of status.  Nonimmigrant visa applicants now no longer need to answer these questions relating to the receipt of public benefits.  

USCIS will revert to the prior guidance outlined in the 1999 Interim Field Guidance in place prior to the introduction of the Public Charge Final Rule. 

REMINDER - OVERVIEW OF UPDATES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

 

PLEASE JOIN US!

REMINDER - OVERVIEW OF UPDATES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

 

PLEASE JOIN US!

OVERVIEW OF UPDATES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, October 12, 2020 at 2PM Eastern (1PM Central).  Interested clients and friends can register for our webinar by clicking on the link below.

 REGISTER HERE

Are you feeling dizzy from all the changes in immigration lately?  Join us for this FREE webinar to learn more about:

• Furloughs at USCIS
• Recap of the Presidential Proclamations from April and June 2020
• 221Gs from the US Embassy in Manila
• The Public Charge Rule
• October Visa Bulletin
• EB2 to EB3 Downgrading options for Indian and Chinese nationals
• Detailed Risk Analysis of I-140 Amendments
• USCIS Fee Increases
• New Department of Labor rule regarding prevailing wage calculations
• New USCIS rule regarding qualification for H-1B

 PLEASE JOIN US!

DISTRICT COURT STOPS NEW PUBLIC CHARGE RULE

On July 29, 2020, a District Court Judge in New York stopped the USCIS and DOS from enforcing, applying, implementing, or treating as effective the new public charge rule during the national health emergency declared by President Trump due to Covid-19.  

On July 31, 2020 USCIS announced that in response to this ruling USCIS will not consider any information or documentation provided with the I-944 on applications filed after July 29, 2020.  In addition, the USCIS will not review information provided with respect to public benefits on the I-485, I-129, or I-539 filed after July 29, 2020.  

Applications for green cards postmarked after July 29, 2020 should not include the I-944 or provide information about the receipt of public benefits on the I-485, I-129, or I-539.  

To date, the DOS has not provided guidance on how it will comply with the ruling.  

Since the Covid-19 outbreak, many questions have arisen concerning government aid, its availability to foreign nationals, and the impact acceptance of various types of government aid will have on the public charge analysis.  Below is a summary of the available government aid and information about its impact on foreign nationals’ immigration situation.

Testing, Treatment, and (Potential) Vaccination

• Eligibility: Foreign nationals are eligible for testing, treatment, and any potential vaccine related to Covid-19. 

• Public Charge: Being tested, treated, or vaccinated for Covid-19 will not be considered in the public charge analysis.  The USCIS has specifically stated that “testing, treatment, and preventative care (including vaccines, if a vaccine becomes available) related to COVID-19” will not be considered as part of a public charge determination. 

CARES Act Stimulus

• Eligibility: Foreign nationals may be eligible for the Cares Act stimulus if the foreign national has a social security number and is either (a) a permanent resident, a/k/a green card holder, or (b) has spent enough time in the US that the foreign national meets the IRS substantial presence test. 

• Individuals who have filed a tax return in 2018 and reported an Adjusted Gross Income (AGI) of up to $75,000 ($150,000 if married/filing jointly) may receive one‑time cash payments of $1,200 ($2,400 if married plus $500 per child).  Those with an AGI over $99,000 ($198,000 for married couples) will not receive a payment.  Some payments may be less for individuals with an income over $75,000 ($150,000 for married couples) but under $99,000 for individuals ($198,000 for married couples). 

• Public Charge: Accepting CARES Act stimulus payments will not be considered in the public charge analysis.  Because the CARES Act stimulus payments are considered tax credits, they will not be considered under the public charge analysis.  The public charge rule is clear that tax credits, including the Earned Income Tax Credit and Child Tax Credit, are not taken into account for the purpose of the public charge rule.

Unemployment

• Eligibility: Eligibility for unemployment varies from state to state.  You should contact an employment law attorney in your state to determine if you are eligible for unemployment benefits.

• Public Charge: Applying for and accepting unemployment will not be considered in the public charge analysis.  The public charge rule explicitly states unemployment benefits are not considered “public benefits” under the public charge inadmissibility determination as unemployment is considered an earned benefits.