On September 11,2020, the Second Circuit Court of Appeals overturned the New York federal judge’s order blocking the Department of Homeland Security from denying permanent residency to legal immigrants who may have received certain public assistance in the wake of COVID-19 pandemic.
As a result, on September 22, 2020, the U.S. Citizenship and Immigration Services (USCIS) issued guidance on how it will implement the public charge rule (also referred to as the “wealth test”) that took effect on February 24, 2020. According to USCIS, the following rules will now be implemented:
- Approved Petitions/Applications: If as a result of the injunction case that was filed, USCIS approved applications and petitions without the required public charge form known as the Affidavit of Self Sufficiency (I-944), it will no longer open the case and re-adjudicate.
- Pending Petitions/Applications: Those who filed petitions or applications before October 13, 2020 and who did not attach the Affidavit of Self Sufficiency Form, a Request for Evidence (RFE) will be issued by the USCIS to afford the petitioner or applicant to submit the I-944 form.
- Petitions/Applications Filed On or After October 13, 2020 without I-944 form will be rejected by USCIS.
- On Non-immigrant Visa Petitions or Applications: USCIS also indicated it will ask for any missing evidence for Form I-129, Petition for a Nonimmigrant Worker; Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker; Form I-539, Application to Extend/Change Nonimmigrant Status; and Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status.
Applications for Immigrant and non-immigrant visas may be denied based on findings that the visa applicant is more likely than not to be a public charge.
While there are added restrictions to the new public charge rules, there are also exemptions. The final public charge rule excludes: public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring U.S. citizenship; Medicaid for aliens under 21 and pregnant women; Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and Medicaid benefits for emergency medical services.; applicants seeking asylum, certain U and T visa applicants and self petitioner’s based on Violence Against Women’s Act (VAWA).
With the harsh ruling by the Second Circuit Court of Appeals, the intending immigrants and even their U.S. citizens or legal permanent residents will be seriously impacted. And during this pandemic, the impossible choice, according to U.S. District Judge George Daniels, whose decision was overturned, will be between jeopardizing public health/personal safety and immigration status. Until a new law is passed or the Supreme Court rules on this issue, the public charge rules implemented on February 24, 2020 stands.
(Updated as of September 23, 2020)
( Lourdes S. “Atty.Lou” Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law Offices and may be reached at law@tancinco.com, tancinco.weareph.com/old, LinkedIn, Facebook/tancincolaw, or at 1-888-930-0808)
