In August, 2019, U.S. Citizenship and Immigration Services (USCIS) published a rule requiring inquiry into whether immigrants in certain nonimmigrant classifications may have received public benefits that would render them inadmissible to the United States on “public charge” grounds.  Because existing USCIS forms do not ask applicants about prior receipt of public benefits, in order to implement the new rule USCIS revised the forms used for certain petitions and applications.

Before the new rule was implemented, various Federal Courts enjoined the rule, either within their respective jurisdictions or nationally, such that the Trump Administration has been prohibited from applying the rule since it was originally proposed.

One Monday, January 27, 2020, the United States Supreme Court stayed the various preliminary injunctions, paving the way for the Administration to proceed with implementation of the new rules governing inadmissibility on “public charge” grounds.  This means the Trump Administration may implement the rule fully while waiting for the lower court to adjudicate the pending case on the merits, and then while the Administration pursues an appeal to the U.S. Supreme Court following the lower court’s decision on the merits.

Upon implementation of the rule, U.S. Citizenship & Immigration Services, U.S. Customs & Border Protection, and the Department of State will begin considering a broader range of factors and evidence when adjudicating petitions or applications for immigration benefits.  For instance, when filing a petition seeking an extension or change of nonimmigrant status for the beneficiary, petitioners must answer questions regarding the beneficiary’s prior or current receipt of public benefits. Specifically, the petitioner must answer whether the beneficiary has received any of the following benefits:

• Any federal, state, local or tribal cash assistance for income maintenance
• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF)
• General Assistance (GA)
• Supplemental Nutrition Assistance Program (SNAP)
• Section 8 Housing under the Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance
• Public Housing under the Housing Act of 1937
• Federally-Funded Medicaid

As the rule is currently structured, if the beneficiary has received any such benefits, additional documentation must be provided with the petition filing.  Further, while certain exemptions and exceptions apply, if the beneficiary of the petition has received such benefits since acquiring the status he or she is seeking to extend or change, and if such assistance was received for a cumulative total of 12 months in a three-year period, the beneficiary can be deemed ineligible for the extension or change of status.

Foster will continue to monitor U.S. Citizenship & Immigration Services’ upcoming steps to implement the rule and will provide more information when it becomes available via our firm’s website at www.fosterglobal.com.