On March 9, 2021, the Department of Homeland Security (DHS) announced that it will no longer seek judicial review of any court decisions invalidating the 2019 Public Charge Final Rule, noting:

Today, DHS Secretary Alejandro N. Mayorkas announced that the government will no longer defend the 2019 public charge rule as doing so is neither in the public interest nor an efficient use of limited government resources. …

As a result, the 1999 interim field guidance on the public charge inadmissibility provision (i.e., the policy that was in place before the 2019 public charge rule) is now in effect.

The USCIS website was updated on March 10, 2021 to state that Form I-944 (Declaration of Self-Sufficiency) is no longer required for applicants for permanent residency (“green cards”).

By way of background, the Public Charge Final Rule was implemented by the Trump administration on August 14, 2019, creating a wealth test for immigration benefits. That rule resulted in the creation of Form I-944, Declaration of Self-Sufficiency, a lengthy form that was required for anyone applying for permanent residency in the United States, which required disclosure of all personal financial information, including all assets and liabilities; a credit report; tax returns; bank statements; and other financial documents. The I-944 Form required thousands of additional hours of work for applicants and their attorneys. It also required applicants for several immigration benefits to disclose whether they had ever accessed any public benefits.

While the public charge ground of inadmissibility has existed in the Immigration and Nationality Act for well over a century, prior administrative guidance issued in 1999 defined a public charge as someone who is “primarily dependent” on government assistance, meaning it supplies more than 50% of their income. In addition, only cash benefits, such as Temporary Assistance for Needy Families or Supplemental Security Income from Social Security, were counted as means tested public benefits which would subject an immigrant to this ground of inadmissibility. The 2019 Public Charge rule significantly broadened the definition of who is considered to be a public charge and also subjected all intending immigrants to burdensome additional paperwork.

The Public Charge Rule was immediately challenged in federal district court, resulting in the November 2, 2020 decision in Cook County, Illinois, et al v. Wolf et. al., (19-cv-6334), granting a nationwide injunction against DHS’ enforcement of the rule. Similar decisions were issued by district courts in the Second and Ninth Circuits. However, DHS appealed and all three Circuits stayed the lower courts’ injunctions, such that DHS began again to enforce the rule and require the I-944 Form in November 2020. The rule has continued to be enforced to date.

On February 22, 2021, the Supreme Court granted a Writ of Certiorari, taking up a case challenging the Public Charge rule. Meanwhile, on February 2, 2021, President Biden issued an executive order entitled, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” which directed DHS to review the Public Charge Rule. However, the Biden administration’s decision not to defend the rule before the Supreme Court effectively ended the application of the rule, as lower court decisions invalidating the rule now stand.

The DHS Public Charge rules did not impact those processing immigrant visas at the consulates.  There, the Department of State’s rules apply.  President Trump’s 2018 public charge-related Foreign Affairs Manual revisions, a 2019 State Department rule that sought to implement restrictions similar to DHS’s, and an October 4, 2019 presidential healthcare proclamation, which combined would deeply impact immigrant visa issuance, remain temporarily enjoined since July 29, 2020.

Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.

If you have questions about how these changes may impact you, your business, or your employees, please contact any member of the Harris Beach immigration practice group.