On March 10, 2021, much to the delight of those seeking to live or work in the US and to US immigration lawyers/advocates, US Citizenship and Immigration Services (USCIS) announced that the agency will no longer be applying former President Trump’s highly controversial August 2019 Public Charge Final Rule (Public Charge Rule) and will revert to the legacy public charge statute [INA § 212(a)(4)] and related guidance. Furthermore, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant status or change of nonimmigrant status.
The death knell to the Trump-era Public Charge Rule is a result of the US Department of Justice’s decision to cease any further defense of the Trump-era Public Charge Rule. In 2019, the US Department of Homeland Security announced, at the direction of the former President, that the agency would greatly expand the definition of “public charge” as it relates to applications for immigrant and nonimmigrant visas, applications adjustment of status within the US, and petitions/applications to change status within the US.
The Trump-era Public Charge Rule expanded the legacy public charge inadmissibility rule, guidance, and policies as follows:
- Expanded the application of public charge inadmissibility grounds to those who are more likely than not to receive certain public benefits for more than a year in aggregate within a three (3) period;
- Shifted focus away from the petitioner, sponsor, or joint-sponsor’s income as reported on the affidavit of support and re-directs it to the applicant’s age, health, family status, financial status, education, and employability;
- Expanded the list of designated public benefits and programs that could be considered when applying the public charge “totality of the circumstances” test; and
- Permitted the posting of a public charge bond for applicants who might otherwise fail the public charge test.
As the legacy public charge inadmissibility rule, guidance, and policies already provided significant safe-guards related to public charge grounds, the end to the Trump-era Public Charge Rule will hopefully permit greater efficiency in adjudication and less burdensome documentation requirements for those seeking immigration benefits.
Stay tuned for the latest from the Moodys immigration team as we closely monitor this legislation and other significant changes in US immigration.