Supreme Court Allows New “Public Charge” Rule

Trump administration’s new “public charge” rule, which blocks people who are found likely to become dependent on government support from successfully receiving a visa or green card, has been approved by the U.S. Supreme Court.

** LEGAL UPDATE **

In late January of 2020, the U.S. Supreme Court held that the Trump administration’s new “public charge” rule, which blocks people who are found likely to become dependent on government support from successfully receiving a visa or green card, could go forward despite legal challenges.

United States Citizenship and Immigration Services (USCIS) announced soon after the Court’s decision that it would begin implementing the rule, starting on February 24, 2020. The only place the new rule will not go into effect for now is the state of Illinois, where a federal court has upheld an injunction (temporary court-ordered block) of the program pending further litigation.

USCIS stated in a recent press release that the new public charge rule would not apply for any applications received and postmarked before February 24, 2020. Also, USCIS, says it will not consider any use of public benefits received before February 24, 2020 in making its determinations.

The major change between the old and new public charge rule is that going forward, the U.S. government will consider an applicant’s use of non-cash benefits such as food stamps, Section 8 housing, or Medicaid to determine whether that person could become a public charge in the future and therefore be inadmissible.

Other key features of the new rule include a new definition of "public charge" as someone who receives public benefits for more than 12 months in the aggregate within any 36-month period; use of a totality of circumstances test to assess the person's likelihood of becoming a public charge in the future, such that a sponsor's Affidavit of Support will carry much less weight than it did before; added USCIS application form requirements requesting financial information (including a new USCIS Form I-944 Declaration of Self-Sufficiency); and the "opportunity" for applicants facing inadmissibility to file a public charge bond.

The rule will apply to people seeking to extend or change certain types of temporary visa status and those seeking permanent residence (a “green card”) in the United States. It will not apply to various exempt groups, such as refugees, asylees, Special Immigrant Juveniles, applicants under the Violence Against Women Act (VAWA), and people extending Temporary Protected Status (TPS) and certain other humanitarian protections.

If you are currently eligible to “adjust status” (apply for a green card in the United States) or extend your temporary visa, and believe you could be subject to restriction under this heightened public charge rule, it is in your best interest to contact an attorney immediately and apply immediately. Before the February 24, 2020 deadline, there's no need to use updated USCIS forms to comply with the new public charge rule.

USCIS is in the process of issuing new application forms designed to comply with the rule, published on its website. If you apply for a visa extension or green card after February 24, 2020, you will need to use the new versions of the forms posted there.

The new public charge rule is still not being used by the Department of State at consulates abroad, but draft regulations are being considered, so that is likely to change soon.

Effective Date: February 24, 2020